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Labor Law 200 and Common Law Negligence Causes of Action Against Owner Properly Dismissed—Owner Did Not Exercise Supervisory Control Over Plaintiff’s Work

The Fourth Department determined the owner was entitled to summary judgment on the Labor Law 200 and common law negligence causes of action based upon evidence the owner did not exercise any supervisory control over plaintiff’s work:

It is well settled that, “[w]here the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200” … . Here, defendants met their burden on the motion of establishing that they did not direct or control plaintiff’s work …. “There is no evidence that defendant[s] gave anything more than general instructions on what needed to be done, not how to do it, and monitoring and oversight of the timing and quality of the work is not enough to impose liability under section 200” or under the common law.. . Matter of Mitchell v NRG Endergy Inc, 2015 NY Slip Op 01367, 4th Dept 2-13-15

 

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abor Law Definition of “General Contractor” Applies In Subrogation Action

The Second Department, over a dissent, determined that the Style defendants, whose role in a building project was limited to procuring the building permit and some minor carpentry, were not the general contractor for the project and were therefore entitled to summary judgment.  After paying the fire-related claim, plaintiff insurance company brought a subrogation action against the Style defendants (as the alleged general contractor). In finding the Style defendants were not the general contractor, the Second Department used the definition of “general contractor” applied under the Labor Law:

The Style defendants established, prima facie, that they were not the general contractor on the … renovation project through the submission of evidence showing that they did not undertake general contractor duties such as supervising, hiring, or paying contractors … . The evidence submitted in support of the Style defendants’ motion demonstrated, prima facie, that the Berensons hired the Baruch defendants as the general contractor on the project, and that the Baruch defendants undertook general contractor duties by coordinating and supervising the project, and hiring and paying subcontractors … . The evidence demonstrated that the only function the Style defendants performed in connection with the renovation project was obtaining the work permit and, at most, performing some minor carpentry and molding work at the beginning of the project … . * * *

…. [T]he rule enunciated in [the] Labor Law cases, which is based on the basic definition of a general contractor as one who, for instance, coordinates and supervises the work and hires and pays subcontractors … , applies equally to this subrogation action. To ignore our Labor Law precedent in this action would, in effect, create a different definition of a general contractor in the subrogation/property damage context, one that would confer general contractor status on an entity simply by virtue of it being listed as the contractor on a work permit. There is no persuasive reason for having two separate definitions of a general contractor, one for the Labor Law/personal injury context and another for the subrogation/property damage context… . Utica Mut Ins Co v Style Mgt Assoc Corp, 2015 NY Slip Op 01266, 2nd Dept 2-11-15

Principles of Owner/Contractor’s Liability Pursuant to Labor Law 241 (6) Succinctly Explained—Plaintiff’s Freedom from Comparative Fault Must Be Demonstrated—Absence of Actual or Constructive Notice on the Owner/Contractor’s Part Is Not a Defense

The Second Department determined summary judgment was properly granted to plaintiff on his Labor Law 241 (6) cause of action based upon the presence of snow and ice on the work site.  Plaintiff was directed to carry a piece of plywood over an area covered with ice and snow.  He fell and was injured.  The court explained the relevant analytical criteria:

As a predicate for liability pursuant to Labor Law § 241(6), the plaintiff alleged that he was injured as a result of a snow and ice condition that was permitted to remain on the worksite in violation of 12 NYCRR 23-1.7(d). That section of the Industrial Code unequivocally directs that ice and snow “shall be removed” from worksites so as “to provide safe footing” (12 NYCRR 23-1.7[d]…). The duty imposed is nondelegable … . Indeed, here, the Construction Management Agreement … provided that [the contractor] “shall remove snow or ice from the Project Site.” The plaintiff’s testimony at his deposition and his averments in his affidavit in support of his motion established that he slipped and fell as a result of the snow and ice at the location where he was performing the tasks assigned to him. The plaintiff also demonstrated his freedom from comparative fault, as he was following his employer’s directives, using the equipment provided, and wearing proper shoes as required by his employer. The plaintiff thereby demonstrated his prima facie entitlement to judgment as a matter of law on the Labor Law § 241(6) cause of action … . … Moreover, “[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, the absence of actual or constructive notice sufficient to prevent or cure must also be irrelevant to the imposition of Labor Law § 241 (6) liability” … . Reynoso v Bovis Lend Lease LMB Inc, 2015 NY Slip Op 01256, 2nd Dept 2-11-15

 

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One- and Two- Family Homeowners’ Exemption Precluded Labor Law 240 (1) and 246 (1) Causes of Action/Defendant-Owner’s Failure to Demonstrate He Did Not Create or Have Notice of the Alleged Dangerous Condition Precluded Summary Judgment on the Labor Law 200 and Common-Law Negligence Causes of Action

After finding that the Labor Law 240(1) and 246(1) causes of action were properly dismissed (one- and two-family homeowner exemption), the Second Department determined the summary judgment should not have been granted to the homeowner on the Labor Law 200 and common-law negligence causes of action.  The motion for summary judgment failed to address the allegation the owner created or had notice of the dangerous condition:

The plaintiff alleged that his injuries were caused both by a dangerous condition on the premises and the “means and methods” of construction. Accordingly, in order to be entitled to judgment as a matter of law dismissing those causes of action, Elias was required to address both theories … . Since Elias failed to establish, prima facie, that he neither created nor had actual or constructive notice of a dangerous condition on the premises, that branch of his motion which was for summary judgment dismissing the causes of action alleging common-law negligence and violation of Labor Law § 200 insofar as asserted against him should have been denied, without regard to the sufficiency of the plaintiff’s papers submitted in opposition… . Pineda v Elias, 2015 NY Slip Op 01254, 2nd Dept 2-11-15

 

“Falling Objects” Protection Afforded by Labor Law 240 (1) Explained

In affirming the denial of defendant's motion for summary judgment on the Labor Law 240 (1) cause of action, the Fourth Department explained the law relating to “falling objects:”

Labor Law § 240 (1) “applies to both falling worker' and falling object' cases” …, and that section 240 (1) guards “workers against the special hazards' that arise when the work site either is itself elevated or is positioned below the level where materials or load [are] hoisted or secured' ” … . To recover under section 240 (1), a worker injured by a falling object must thus establish both (1) that the object was being hoisted or secured, or that it ” required securing for the purposes of the undertaking,' ” and (2) that the object fell because of the absence or inadequacy of a safety device to guard against a risk involving the application of the force of gravity over a physically significant elevation differential … . Floyd v New York State Thruway Auth, 2015 NY Slip Op 01131, 4th Dept 2-6-15


 

Non-Supervising Property Owner Not Liable Under Common Law or Labor Law 200 for Injury Stemming from the Manner In Which the Work Is Done

The Fourth Department noted that no liability attaches to the non-supervising property owner under Labor Law 200 or common law negligence when the worker's injury stems from the manner in which the work was performed and not from the condition of the work site:

“It is settled law that where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law” … . Here, defendants met their initial burden by establishing that plaintiff's accident resulted from the manner in which the work was performed, not from any dangerous condition on the premises, and defendants exercised no supervisory control over the work… . Zimmer v Town of Lancaster Indus Dev Agency, 2015 NY Slip Op 01023, 4th Dept 2-6-15


Construction Manager Did Not Have the Contractual Authority to Control the Manner In Which Work Was Done and In Fact Did Not Control the Manner In Which Work Was Done—Labor Law 240 (1) and 200 Causes of Action Properly Dismissed

The Third Department determined Supreme Court properly dismissed Labor Law 240 (1) and 200 causes of action against the construction manager because the construction manager (Sano-Rubin) did not possess the contractual authority to control, and in fact did not control, the manner in which the work was done.  The court explained the analytical criteria:

At the time of plaintiff’s injury, Sano-Rubin was serving as the construction manager for various construction projects occurring throughout the school district pursuant to a contract it had entered into with the school district. Plaintiff initially contends that there are factual issues as to whether Sano-Rubin’s role renders it a statutory defendant under Labor Law § 240 (1), which “imposes liability only on contractors, owners or their agents” … . Under this provision, a party that is operating as a construction manager is not deemed a statutory agent unless that party has “the authority to direct, supervise or control the work which brought about the injury” … . “The key criterion in ascertaining Labor Law § 240 (1) liability is not whether the party charged with the violation actually exercised control over the work, but rather whether [that party] had the right to do so” … . Similarly, under Labor Law § 200, which codifies the common-law duty of care as between owners, general contractors and their agents, the imposition of liability requires a showing that the defendant possessed the authority to direct or control the activity resulting in injury … .

Sano-Rubin’s contract with the school district provided that Sano-Rubin “shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the [w]ork of each of the [c]ontractors” and further, that if Sano-Rubin “observes any safety program or action at the site which it believes is improper or in violation of applicable law or rules, it shall immediately advise the [o]wner.” This contract was submitted upon the cross motion, together with proof of the implementation of these contractual limitations on Sano-Rubin’s authority … , These submissions were sufficient to establish its prima facie right to judgment as a matter of law… . Larkin v Sano-Rubin Constr Co Inc, 2015 NY Slip Op 00672, 3rd Dept 1-29-15

 

“General Supervisory Authority” Over Work Not Sufficient to Impose Liability Under the Labor Law

In affirming summary judgment in favor of the defendants, the Second Department described the nature of work-supervision necessary to hold a defendant liable under Labor Law 240 (1), 241 (6), 200 and common-law negligence theories.  “General supervisory authority” is not enough to impose liability:

“Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents” … . “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured” … . “Similarly, where, as here, a claim against a defendant arises out of alleged defects or dangers in the methods or materials of the work, recovery cannot be had under Labor Law § 200 or pursuant to the principles of common-law negligence unless it is shown that the party to be charged under that theory of liability had the authority to supervise or control the performance of the work” … . * * *

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) by establishing that they were not owners, contractors, or statutory agents under those provisions … . The defendants also established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law § 200 and common-law negligence through the submission of evidence which demonstrated that they did not have the authority to supervise or control the manner in which the injured plaintiff performed his work … .

To the extent that the defendants had general supervisory authority over the work, this was insufficient in itself to impose liability under the Labor Law … . Fucci v Plotke, 2015 NY Slip Op 00726, 2nd Dept 1-28-15

 

Question of Fact Whether Failure to Wear a Harness Precluded Recovery in a Labor Law 240 (1) Action

The Second Department determined defendant had raised a question of fact whether plaintiff’s actions were the sole proximate cause of the accident (which would preclude recovery in a Labor Law 240 (1) action).  Plaintiff was injured when plywood flooring collapsed. However the defendant presented evidence plaintiff was aware he was required to wear a harness which would have prevented him from falling to the floor below:

” Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites'” … . To prevail on a cause of action pursuant to Labor Law § 240(1), the plaintiff must establish a violation of the statute and that the violation was a proximate cause of his injuries … . Although contributory negligence on the part of the worker is not a defense to a Labor Law § 240(1) claim …, where a plaintiff’s actions are the sole proximate cause of his injuries, liability under Labor Law § 240(1) does not attach … .

Here, although the plaintiff met his prima facie burden of establishing a violation of Labor Law § 240(1) … the defendants produced evidence that a safety harness and line were available to the plaintiff, that he was aware that he was required to anchor the line on the floor where he was working, and that the anchors, harness, and line would have prevented him from falling to the 14th floor, but that the plaintiff had consciously decided not to anchor his line on the 15th floor as instructed. The defendant’s submissions were sufficient to raise a triable issue of fact as to whether the plaintiff’s actions were the sole proximate cause of his accident … . Bascombe v West 44th St Hotel LLC, 2015 NY Slip Op 00712, 2nd Dept 1-28-15

 

Safety Regulation Asserted to Be the Basis of the Labor Law 241 (6) Cause of Action Did Not Apply to the Defect Which Caused the Injury

The Third Department determined plaintiff’s injury from his use of a utility knife did not entitle him to recovery pursuant to Labor Law 241 (6).  The safety regulation alleged to have been violated prohibited a contractor from supplying tools with split or loose handles.  The problem with the utility knife was a loose locking mechanism.  The court refused to stretch the meaning of “loose or split handles” to include a loose locking mechanism:

Plaintiffs allege in their bill of particulars that defendant violated 12 NYCRR 23-1.10 (a), which states, in pertinent part, that unpowered hand tools with “[s]plit or loose tool handles shall not be used.” Notably, this regulatory provision does not merely impose a general duty to keep unpowered hand tools in a “safe,” “proper” or “adequate” condition …, nor does it proscribe the usage of hand tools with “unsafe” or “defective” handles, but, rather, specifically prohibits the use of hand tools with “[s]plit or loose . . . handles.”

Having determined that plaintiffs have asserted a violation of a regulatory provision that “‘sets forth a specific standard of conduct'” for general contractors and owners …, thereby providing a predicate basis for a claim under Labor Law § 241 (6), we are left to decide whether the regulation applies to the facts presented in this case [FN2]. Plaintiff explained during his examination before trial that, while he was cutting a piece of plastic with a utility knife, the locking mechanism that secures the retractable blade was loose, causing the blade to break in half and cut plaintiff’s wrist. Whether the dysfunctional locking mechanism can fairly be considered to be a “[s]plit or loose tool handle[]” is a question of law to be decided by the courts … . A fair reading of the regulation upon which plaintiffs rely, however, does not compel us to conclude that the looseness of the locking mechanism — an internal component of the knife and not a visible or functional part of the handle itself — was what the Commissioner of Labor had contemplated in his promulgation of 12 NYCRR 23-1.10 (a) … . We are well aware that the Industrial Code “should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” … . However, while the regulation sets forth a strict prohibition against using tools that have loose or split handles, it makes no mention whatsoever of the locking mechanism found within a hand tool, and we are thus constrained to determine that it is inapplicable. Boots v Bette & Cring LLC, 2015 NY Slip Op 00588, 3rd Dept 1-22-15

 

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