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Falling Block Not Shown to Be Related to the Failure of a Safety Device—Labor Law 240(1) Did Not Apply

The First Department determined injury from a stone block which fell from a pallet was not covered by Labor Law 240(1) because it was not demonstrated the incident resulted from the failure of a safety device:

The motion court properly granted defendants’ cross motion to dismiss plaintiff’s Labor Law § 240(1) claim. Section 240(1) does not apply automatically every time a worker is injured by a falling object … . Rather, the “decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” … . The worker must establish that the object fell because of the inadequacy or absence of a safety device of the kind contemplated by the statute … . In order for something to be deemed a safety device under the statute, it must have been put in place “as to give proper protection” for the worker (§ 240[1]).

Here, we conclude that plaintiff’s injury was not caused by the absence or inadequacy of the kind of safety device enumerated in the statute … . Plaintiff does not contend that the block itself was inadequately secured. Instead, plaintiff argues that § 240(1) is applicable because his injuries were caused by defendants’ failure to provide an adequate safety device to hold the plastic tarp in place. Specifically, plaintiff maintains that the plastic tarp was inadequately secured because, if it had been properly secured, such as with ropes and stakes, plaintiff’s injury would not have occurred.

Plaintiff’s argument is unconvincing. The plastic tarp was not an object that needed to be secured for the purposes of § 240(1)…, nor is there any indication that the tarp caused plaintiff’s injuries. Guallpa v Leon D DeMatteis Constr Corp, 2014 NY Slip Op 06666, 1st Dept 10-2-14

 

Labor Law 241(6) Claim Should Not Have Been Dismissed—Although Claimant Did Not Perform “Labor-Intense Aspects of the Project” His Finance-Related Job Entailed On-Site Inspections

The First Department determined plaintiff’s Labor Law 241(6) claim should not have been dismissed.  Although plaintiff did not perform labor, his finance-related job required that he inspect the work site.  Plaintiff tripped and fell while doing an inspection:

Plaintiff’s Labor Law § 241(6) claim was improperly dismissed on the ground that plaintiff was not covered under the statute. Plaintiff testified that he was an onsite project manager, employed by one of multiple general contractors on the subject construction project, whose job pertained to financial issues such as billing of subcontractors and revenue projections for the project. He testified that he tripped and fell in a vestibule he was walking through, intending to conduct a visual inspection of a condition alleged … to support a back charge for “additional work,” in order to determine whether this claim was substantiated. Thus, plaintiff was not merely working in a building that happened to be under construction … . Rather, his job duties, including the inspection he was conducting at the time of the accident, were contemporaneous with and related to ongoing work on the construction project … . Thus, plaintiff was covered under the statute even though he did not perform the “labor-intense aspects of the project” … .  DeSimone v City of New York, 2014 NY Slip Op 06667, 1st Dept 10-2-14

 

Plaintiff Was Catapulted Into the Air from a Flatbed Truck When a Heavy Bundle Landed on the Plank He Was Standing On—Labor Law 240(1) Action Should Not Have Been Dismissed

The Second Department determined that the Labor Law 240(1) cause of action should not have been dismissed.  Plaintiff was catapulted into the air when heavy bundles of rebar were being rolled off a flatbed truck.  A bundle landed on the plank plaintiff was standing on and the plank raised up sharply.  A hoist had previously been used to remove the bundles from the truck.  The court also noted that the common law negligence and Labor Law 200 causes of action against one of the defendants should not have been dismissed because of a question of fact about the defendant’s supervisory role:

“Labor Law § 240(1) 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” … . “The relevant inquiry—–one which may be answered in the affirmative even in situations where the object does not fall on the worker–—is rather whether the harm flows directly from the application of the force of gravity to the object” … .

The launch of the plaintiff from the truck along with the wooden “four by four” plank upon which he was standing flowed directly from the application of the force of gravity to the bundle of rebar … . The elevation differential between the flatbed truck and the ground was significant given the 8,000-to-10,000-pound weight of the bundles of rebar, and the amount of force they were capable of generating, “even over the course of a relatively short descent” … .

The causal connection between the bundles’ “inadequately regulated descent and plaintiff’s injury” was unmediated by any safety device, such as the crane that had hoisted the bundles earlier in the day … .

The plaintiff’s evidence established, prima facie, that the … respondents violated Labor Law § 240 by failing to provide an enumerated safety device, such as the hoist that had been provided earlier in the day to secure the bundle of rebar as it was being lowered, and that the Tillary respondents’ failure to provide an appropriate safety device was a proximate cause of the plaintiff’s injury … . Treile v Brooklyn Tillary LLC, 2014 NY Slip Op 06197, 2nd Dept 9-17-14

 

Plank Used to Access Work Area Not Covered by Industrial Code—Labor Law 241(6) Action Dismissed

The First Department determined a plank used to walk on for access a work area was not “used in the construction of equipment or a temporary structure” and therefore could not be the basis of an action under Labor Law 241(6):

Insofar as the Labor Law § 241(6) claim is based on a violation of Industrial Code (12 NYCRR) § 23-1.7(e)(1), it should be dismissed. The accident occurred in an open working area, notwithstanding evidence that workers traversed the plank to get from the street to the job site … .

Industrial Code (12 NYCRR) § 23-1.11(a) states: “The lumber used in the construction of equipment or temporary structures required by this Part (rule) shall be sound and shall not contain any defects . . . which may impair the strength of such lumber for the purpose for which it is to be used.” While the plank on which DePaul slipped qualifies as dimensional lumber under the regulation, it fails to meet the other specified criteria: it was not used in the construction of equipment or a temporary structure, and no equipment or temporary structure required by Part 23 has been identified by plaintiffs. A plank fails to meet even the liberal definition of “structure” contained in Joblon v Solow …: “any production or piece of work artificially built up or composed of parts joined together in some definite manner” (internal quotation marks omitted and emphasis added). Plaintiffs concede that the lumber was not joined together, and photographs of the location show only loose planks. Simply put, nothing had been constructed from the planks so as to come within the ambit of the regulation. Furthermore, the regulation applies only to a device required to be constructed by another provision of Part 23, as evident from subsections (b) and (c), which discuss, respectively, “[t]he lumber dimensions specified in this Part (rule)” and the nails required “to provide the required strength at all joints.” Thus …plaintiffs have failed to demonstrate that § 23-1.11(a) is applicable, and this claim was properly dismissed … . DePaul v NY Brush LLC, 2014 NY Slip Op 06152, 1st Dept 9-11-14

 

Failure to Identify in the Complaint and Bill of Particulars the Specific Code Provision(s) Alleged to Have Been Violated Is Not Fatal to a Labor Law 241(6) Cause of Action

The Second Department noted that the failure to identify, in the complaint and bill of particulars, the specific code provision alleged to have been violated (in support of a Labor Law 241(6) cause of action) is not a fatal defect:

Although a plaintiff asserting a Labor Law § 241(6) cause of action must allege a violation of a specific and concrete provision of the Industrial Code …, the failure to identify the code provision in the complaint or bill of particulars is not fatal to such a claim … . Here, the plaintiff’s belated allegations that Cook violated 12 NYCRR 23-1.21(b)(1), 23-1.21(b)(3)(i), 23-1.21(b)(3)(iv), 23-1.21(b)(4)(ii), and 23-1.21(e)(2) involved no new factual allegations, raised no new theories of liability, and caused no prejudice … . Moreover, these code provisions set forth specific, rather than general, safety standards, and are sufficient to support a Labor Law § 241(6) cause of action … . Przyborowski v A&M Cook LLC, 2014 NY Slip Op 05852, 2nd Dept 8-20-14

 

Subcontractor Which Supervised Plaintiff’s Work Was An Agent for the General Contractor

The Second Department determined a subcontractor which assumed a supervisory role over plaintiff’s work was liable under Labor Law 240(1) as an agent of the general contractor:

To hold a defendant liable as an agent of the general contractor for violations of Labor Law §§ 240(1) and 241(6), there must be a showing that it had the authority to supervise and control the work … . “The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right” … . Where the owner or general contractor does in fact delegate the duty to conform to the requirements of the Labor Law to a third-party subcontractor, the subcontractor becomes the statutory agent of the owner or general contractor … . Van Blerkom v America Painting LLC, 2014 NY Slip Op 05858, 2nd Dept 8-20-14

 

Labor Law 200 Action Is Not Based Upon Supervision or Control of Plaintiff’s Work, But Rather on the Property Owner’s Creation or Failure to Remedy a Dangerous Condition

The Second Department noted that a negligence case of action pursuant to Labor Law 200 is not based upon supervision or control over the plaintiff’s work, but rather is based upon whether the property owner (the Town)ncreated or failed to remedy a dangerous condition:

The Supreme Court also properly denied those branches of the Town’s motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it. Before the Supreme Court and on appeal, in support of these branches of its motion, the Town focused exclusively upon its alleged lack of supervision of, or control over, the plaintiff’s work. That argument is only relevant where the claimed injury arises from the manner in which the work is performed … . Where, as here, the injury arises from an allegedly defective or dangerous condition on the premises, the allegedly unsecured and improperly stored electrical wire, a property owner will be liable under a theory of common-law negligence, as codified by Labor Law § 200, when the owner created the alleged dangerous or defective condition, or failed to remedy a dangerous or defective condition of which it had actual or constructive notice … . Baumann v Town of Islip, 2014 NY Slip Op 05825, 2nd Dept 8-20-14

 

Fall Into a Three-to-Four-Foot-Deep Hole Is Not an Elevation-Related Event Under Labor Law 240(1)

The Fourth Department determined that falling into a hole is not an “elevation-related event” within the meaning of Labor Law 240(1).  The court further determined that regulation requiring that an excavation near a “sidewalk, street or highway or other area lawfully frequented by any person…” be guarded or covered did not apply to employees at a work site. With respect to the elevation requirement for section 240(1), the court wrote:

Where, as here, a plaintiff falls into a hole while walking at ground level, the plaintiff’s injury “[is] not caused by [defendants’] failure to provide or erect necessary safety devices in response to elevation-related hazards,’ and, accordingly, the protections of Labor Law § 240 (1) do not apply” … . The cases relied upon by plaintiff are factually distinguishable because they involve falls into excavated areas, as opposed to mere holes in the ground such as the one here … . Unlike the excavation cases, this is not a case where protective devices enumerated in Labor Law § 240 (1), e.g., “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, [and] ropes” were designed to apply… . Wrobel v Town of Pendelton, 2014 NY Slip Op 05738, 4th Dept 8-8-14

 

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Contractor Was a Statutory Agent for the Owner for Purposes of the Labor Law Causes of Action

The First Department explained that a contractor (Bovis) with the authority to direct plaintiff’s work became a statutory agent for the city with respect to the Labor Law 240(1) and 241(6) causes of action:

…[T]he undisputed evidence established that Bovis was a statutory agent for the City since it possessed and exercised supervisory control and authority over the work being done … . ” When the work giving rise to [the duty to conform to the requirements of section 240(1)] has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory “agent” of the owner or general contractor'” … . Bovis’s own superintendent testified that Bovis functioned as the “eyes and ears” of the City for the subject construction project, and it had broad responsibility under its contract to coordinate and supervise the work of the four prime contractors, including plaintiff’s employer … . Johnson v City of New York, 2014 NY Slip Op 05698, 1st Dept 8-7-14

 

“Cleaning” Within the Meaning of Labor Law 240(1) Explained

The Second Department determined defendants were not entitled to summary judgment dismissing plaintiff’s Labor Law 240(1) action. Plaintiff fell from a 20-foot ladder while cleaning windows.  The defendants were unable to demonstrate that the activity plaintiff was engaged in was not covered by Labor Law 240(1):

Labor Law § 240(1) provides protection for those workers performing maintenance that involves painting, cleaning, or pointing … . Other than commercial window cleaning, which is afforded protection pursuant to the statute …, whether an activity is considered “cleaning” for the purpose of Labor Law § 240(1) depends on certain factors. An activity is not considered “cleaning” when (1) it is performed on a routine or recurring basis as part of the ordinary maintenance and care of commercial premises, (2) does not require specialized equipment or expertise, (3) usually involves insignificant elevation risks comparable to those encountered during typical domestic or household cleaning, and (4) is unrelated to any ongoing construction, renovation, painting, alteration, or repair project … . “Whether [an] activity is cleaning’ is an issue for the court to decide after reviewing all of the factors. The presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other” … .

The evidence submitted by the defendants in support of their motion failed to establish, prima facie, that the plaintiff’s activity at the time of the accident could not be characterized as “cleaning” under Labor Law § 240(1). The evidence did not definitively demonstrate that the plaintiff was performing a routine task or that it was a task that involved an insignificant elevation risk which was comparable to those risks inherent in typical household cleaning … . Pena v Varet & Bogart LLC, 2014 NY Slip Op 05524, 2nd Dept 7-30-14

 

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