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To Be Entitled to Summary Judgment on a Labor Law 200 Cause of Action, the Defendant Must Demonstrate the Defendant (1) Did Not Control the Plaintiff’s Work and (2) Did Not Create or Have Constructive Knowledge of the Dangerous Condition

The Second Department determined summary judgment should not have been granted to defendant homeowners in this Labor Law 200 action. It was alleged the homeowners created a dangerous condition by placing an unsecured tarp in the area where plaintiff placed his ladder. Plaintiff was injured when he fell from the ladder.  The Second Department explained that the defendants, to be entitled to summary judgment, were required to demonstrate (1) they did not “have authority to supervise or control the methods or materials of the injured plaintiff’s work” and (2) they did not create the dangerous condition that caused the accident or have actual or constructive notice of the dangerous condition. Here the defendants failed to demonstrate they did not create the dangerous condition:

Where a plaintiff’s injures are alleged to have been caused by defects in both the premises and the equipment used at the work site, 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 of the foregoing liability standards … . A defendant moving for summary judgment in such a case may prevail “only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff’s accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard” … . Pacheco v Smith, 2015 NY Slip Op 04293, 2nd Dept 5-20-15

 

Inability to Remember Fall and Absence of Witnesses Did Not Preclude Summary Judgment on Labor Law 240(1) Cause of Action

The First Department determined the plaintiff’s inability to remember his fall from a scaffold and the absence of witnesses did not preclude summary judgment in his favor for the Labor Law 240(1) cause of action:

Plaintiff established his entitlement to judgment as a matter of law on the issue of liability in this action where he sustained injuries when, while performing asbestos removal work in a building owned by defendant, he fell from a baker’s scaffold. Plaintiff’s testimony that he was standing on the scaffold working, and then woke up on the ground with the scaffold tipped over near him, established a prima facie violation of the statute and that such violation proximately caused his injuries … . That plaintiff could not remember how he fell does not bar summary judgment … . Nor does the fact that he was the only witness raise an issue as to his credibility where, as here, his proof was not inconsistent or contradictory as to how the accident occurred, or with any other evidence … . Strojek v 33 E. 70th St. Corp., 2015 NY Slip Op 04203, 1st Dept 5-14-15

 

Violation of an Industrial Code Provision Does Not Conclusively Establish Negligence in a Labor Law 241 (6) Action

The Fourth Department noted that the fact that an Industrial Code provision was violated does not establish negligence sufficient to support partial summary judgment: “Despite our conclusion that defendants violated 12 NYCRR 23-9.5 (c), we reject plaintiff’s contention that he is entitled to partial summary judgment on the issue of defendants’ liability with respect to the Labor Law § 241 (6) claim. A violation of an Industrial Code provision ‘does not establish negligence as a matter of law but is merely some evidence to be considered on the question of a defendant’s negligence’…”.   Whether there was a violation of 12 NYCRR 23-9.5 (c) turned on whether plaintiff was a member of an “excavation crew.” If he was not, then his proximity to the equipment which injured him violated the provision. If he was a member of an “excavation crew,” the provision was not violated.  The majority determined plaintiff was not a member of a “crew” because he was the only person there.  The two dissenting judges disagreed and argued plaintiff was a member of an “excavation crew” within the meaning of the provision. Vanderwall v 1255 Portland Ave. LLC, 2015 NY Slip Op 03959, 4th Dept 5-8-15

 

Plaintiff, Who Fell Through an Open Manhole, Entitled to Summary Judgment on Labor Law 240 (1) Cause of Action—Failure to Set Up Guard Rails Was a Proximate Cause–Liability Imposed Regardless of Plaintiff’s Own Negligence and Regardless of Whether the Owner, Contractor or Agent Supervised or Controlled the Work

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a two-judge dissent, determined plaintiff, who fell through an uncovered manhole, was entitled to partial summary judgment on his Labor Law 240 (1) claim based on testimony the manhole should have been surrounded by guard rails. The court also determined there was a question of fact whether the safety consultant, IMS, was liable as a “statutory agent” under Labor Law 240 (1). The court explained that the obligation to provide safety devices is a nondelegable duty which imposes liability regardless of whether owner, contractor or agent supervises or controls the work. Where 240 (1) is violated, the plaintiff's negligence is not a defense, unless plaintiff's negligence is the sole proximate cause of the injury:

Section 240 (1) provides, in relevant part:

“All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor [certain enumerated] [*4]and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

The statute imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work … . “Where an accident is caused by a violation of the statute, the plaintiff's own negligence will not furnish a defense”; however, “where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability” … . Thus, in order to recover under section 240 (1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury … . Barreto v Metropolitan Tr. Auth., 2015 NY Slip Op 03875, CtApp 5-7-15

 

Lateral Shift of Heavy Equipment, Which Pinned Plaintiff Against a Column, Not Gravity-Related—Not Covered Under Labor Law 240 (1)

The First Department determined Supreme Court should have dismissed plaintiff’s Labor Law 240 (1) cause of action because plaintiff’s injury was not caused by a falling object. Plaintiff was moving an 8000 pound piece of equipment across a flat platform when the equipment shifted laterally and pinned plaintiff against a column. Because the accident did not flow from the application of the force of gravity, it was not covered under Labor Law 240 (1):

Plaintiff and his coworkers were moving a piece of an 8,000-pound piece of equipment across a flat platform. The ultimate goal was to place the equipment onto the forks of a forklift. Plaintiff testified that because two wheels broke off, the workers were pushing and pulling the equipment when it pinned him against a column on the side of the platform. Plaintiff testified that they did not lift the equipment into the air, and that it did not fall. Nor did he know what caused the equipment to shift laterally towards his side. Plaintiff’s testimony established that the piece of equipment that pinned him to the column was not a “falling object” and that he was not a “falling worker,” and the accident did not otherwise flow from the application of the force of gravity. Thus, he was not covered by Labor Law § 240(1) under the current case law … . Martinez v 342 Prop. LLC, 2015 NY Slip Op 03770, 1st Dept 5-5-15

 

Failure to Instruct the Jury on the Sole Proximate Cause Defense Required Reversal of Plaintiff’s Verdict

The Fourth Department, over a dissent, reversed the judgment for the plaintiff and ordered a new trial finding that the trial judge should have instructed the jury on the sole proximate cause defense.  The plaintiff used a wobbly ladder while painting and fell. The trial judge felt that the sole proximate cause defense (i.e., that the plaintiff’s acts or omissions were the sole proximate cause of the accident) would have been triggered only if the plaintiff ignored an instruction to use a different ladder. The Fourth Department explained that the defense could also be triggered if the plaintiff knew he had other options available but chose to use the wobbly ladder:

…[T]he court held that plaintiff’s choice of ladder could not be the sole proximate cause of his injuries unless he had been told to use another safety device and had ignored that directive. That was an incorrect statement of the law inasmuch as it is not necessary that a plaintiff be told to use another safety device. Rather, there will be no liability imposed on a defendant if the defendant establishes that the plaintiff knew he should use another safety device and knew that such was available at the job site, but chose not to use it … . * * *

As the Court of Appeals held …, in order for there to be liability under section 240 (1), “the owner or contractor must breach the statutory duty under section 240 (1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker’s injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them” … . Piotrowski v McGuire Manor Inc, 2014 NY Slip Op 03045, 4th Dept 5-2-14

 

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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