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Block Falling from Pallet Covered Under Labor Law 240(1)/Criteria for Common Law Indemnification Explained

The Second Department determined injury from a stone block falling from a pallet was covered by Labor Law 240(1).  The court also explained the requirements for common law indemnification:

The defendants failed to establish their prima facie entitlement to judgment as a matter of law. Labor Law § 240(1) mandates that owners and contractors “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, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” The statute imposes absolute liability on owners and contractors whose failure to “provide proper protection to workers employed on a construction site” proximately causes injury to a worker … . The defendants failed to show that the injured plaintiff’s alleged injuries resulted from a general hazard encountered at a construction site and were not “the direct consequence of a failure to provide” an adequate device of the sort enumerated in Labor Law § 240(1) … . Those devices are intended to protect “against a risk arising from a physically significant elevation differential” (id. at 603). The defendants’ submissions did not establish that the accident was not the result of a failure to provide a protective device contemplated by the statute … . * * *

The key element of a cause of action for common-law indemnification is not a duty running from the indemnitor to the injured party, but rather, is a separate duty owed the indemnitee by the indemnitor … . ” Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine'”… . Desena v North Shore Hebrew Academy, 2014 NY Slip Op 05149, 2nd Dept 7-9-14

 

Questions of Fact Raised About Labor Law 240(1), 240(6) and 200 Causes of Action—Labor Law 200 Actions Are Not Limited to Construction Work (Question of Fact About Unsafe Work Site Will Support Labor Law 200 Cause of Action)

The Fourth Department noted that Labor Law 200 causes of action are not limited to construction work and, with respect to one of the defendants,  a question of fact had been raised about the safety of the work site.  Plaintiff was injured when he drove a forklift over plywood covering a pit used to store linens in an industrial laundry operation. Questions of fact had also been raised about whether work being done by the plaintiff was covered by Labor Law 240(1) and Labor Law 240 (6). With respect to the Labor Law 240(1) cause of action against two of the defendants, the court wrote:

…[T]he court properly denied [defendants’] respective motions for summary judgment with respect to the Labor Law § 240 (1) claim because there are issues of fact whether plaintiff was engaged in an activity covered by that section. To fall under the protection of Labor Law § 240 (1), “the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, [or] altering . . . of a building or structure’ ” or must have “involve[d] . . . such activities” … . Here, the parties’ submissions raise an issue of fact whether plaintiff himself was “altering” or making a “significant physical change to the configuration or composition of the building or structure” at the time of his injury … . Specifically, the record is unclear whether plaintiff was in the process of simply moving a “towel folder,” which would not afford him the protection of section 240 (1) …, unless that activity “was . . . ancillary” to the ongoing renovation work … ; or, whether he was removing an old machine weighing approximately 1,000 pounds and then installing and securing to the cement floor a new machine as a replacement, which would afford him the protection of section 240 (1) … . Foots v Consolidated Bldg Contrs Inc, 2014 NY Slip Op 05058, 4th Dept 7-3-14

 

Cleaning Cement Truck After Cement-Delivery Not Covered by Labor Law 240

The Fourth Department, over a dissent, determined plaintiff was not engaged in an activity protected by Labor Law 240 at the time of the injury.  Plaintiff had just delivered concrete to the defendant farm and was cleaning his truck when he fell from a ladder attached to the truck:

…[W]e agree with defendant that the activity in which plaintiff was engaged at the time of his injury, i.e., the routine cleaning of his employer’s cement truck after making a delivery, “was not the kind of undertaking for which the Legislature sought to impose liability under Labor Law § 240′ ” … . Specifically, plaintiff “was not engaged in the erection, demolition, repairing, altering, painting, cleaning or pointing’ of a building or structure’ within the intended meaning of Labor Law § 240 (1)” … . Rather, he was “engaged in routine maintenance” of the cement truck, “which is not a protected activity under Labor Law § 240 (1)” … .

We reject the dissent’s view that this case is distinguishable from Koch because the plaintiff in that case was “merely a delivery driver” while “there is evidence here that plaintiff operated the machinery of the cement truck to assist in the pouring of the concrete as part of the construction of the silo.” Any such distinction, even if supported by the record, is irrelevant to the applicability of Labor Law § 240 (1).  Bish v Odell Farms Partnership, 2014 NY Slip Op 05063, 4th Dept 7-3-14

 

Plaintiff’s Labor Law 240 and 200 Actions Against the Town Should Have Been Dismissed—Although the Town Hired Plaintiff to Do Work on the Town’s Right of Way, the Accident Occurred on Adjacent Private Property—Labor Law 200 Action Against the Property Owners Should Not Have Been Dismissed

The Fourth Department, over a dissent, determined the Labor Law 240 and 200 actions against the town should have been dismissed because the injury occurred on private land, not town land.  The court further determined that the Labor Law 200 action against the landowners (the Hersheys) should not have been dismissed because the owners did not demonstrate as a matter of law their lack of notice of the dangerous condition.  The plaintiff had been hired by the town to do sidewalk and driveway work on the town’s right of way next to the Hersheys’ property. The plaintiff was parking a backhoe on the Hersheys’ property, with the Hersheys’ permission, when it tipped over into a ravine:

…[W]e agree with the Town that the court erred in denying the Town’s motion for summary judgment dismissing the Labor Law §§ 240 (1) and 241 (6) causes of action against it, inasmuch as the Town is not an “owner” for purposes of those statutes … . It is well settled that “the term owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit’ ” … . Here, the accident occurred well outside of the Town’s right-of-way, and the Town had no other interest in or legal authority over the landing area, which was located entirely on the Hersheys’ private property … . The Town established that it was Kenneth Hershey, not the Town, who gave plaintiff permission to park in the landing area; that the Town had no authority to grant such permission to plaintiff; and that Kenneth Hershey directed plaintiff where to park. Further, the Town established that the landing area was not part of the construction site … . No work was being performed in the landing area, and the landing area was not contiguous or in proximity to the construction site … . Moreover, the Town established that it was not necessary for plaintiff to park the backhoe in the landing area. The Town provided plaintiff with parking in a municipal garage, which was located a few miles from the work site. Plaintiff, however, testified at his deposition that he chose to use the landing area because it was closer to the work site and more “convenient” to do so … . Farruggia v Town of Penfield, 2014 NY Slip Op 4th Dept 7-3-14

 

Ladder Which “Kicked Out” from Under Plaintiff Entitled Plaintiff to Partial Summary Judgment/Replacement of Cracked Glass Constituted Covered “Repair” Not Routine Maintenance

The First Department, over a dissent, determined that the replacement of cracked glass in skylight constituted repair rather than routine maintenance, and therefore was a covered activity under Labor Law 240 (1).  A ladder used by the plaintiff to access the skylight “kicked out” from under him:

“The plaintiff need not demonstrate that the [safety device] was defective or failed to comply with applicable safety regulations,” but only that it “proved inadequate to shield [plaintiff] from harm directly flowing from the application of the force of gravity to an object or person” … . The inexplicable shifting of an unsecured ladder may alone support a § 240(1) claim if a worker is caused to fall due to such shifting … . A worker’s prima facie entitlement to partial summary judgment on his or her § 240(1) claim may be established by proof that the ladder provided collapsed under the worker while he or she was engaged in an enumerated task … .

The crux of this case involves the question of whether plaintiff was involved in repair or maintenance work. “Essentially, routine maintenance for purposes of the statute is work that does not rise to the level of an enumerated term such as repairing or altering” … . In distinguishing between what constitutes repair as opposed to routine maintenance, courts will consider such factors as “whether the work in question was occasioned by an isolated event as opposed to a recurring condition” …; whether the object being replaced was “a worn-out component” in something that was otherwise “operable” …; and whether the device or component that was being fixed or replaced was intended to have a limited life span or to require periodic adjustment or replacement …

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Here, plaintiff described the panes as being constructed of “heavy plate glass” with wire running through them and stated that they simply “do not crack or wear out over time.” Plaintiff showed, without contradiction, that these panes were not being replaced as a result of normal wear and tear, as they were not expected to be regularly replaced. Soriano v St Mary’s Orthodox Church of Rockland, Inc, 2014 NY Slip Op 04419, 1st Dept 6-17-14

 

Homeowner’s Exemption Applied/Fact that Three Unrelated Families Lived in the Home Did Not Negate the Finding that the Home Was a Single Family Dwelling

The First Department determined defendants were entitled to dismissal of the complaint on the basis of the homeowner’s exemption to liability under Labor Law 241(6).  The fact that three unrelated families lived in the home did not negate the finding that the home was a single-family dwelling:

Under the homeowner exemption, “owners of one and two-family dwellings who contract for but do not direct or control the work” are exempt from liability under Labor Law § 241(6). Here, defendants established that the premises was a single-family dwelling by submitting affidavits stating that they purchased the premises solely as a second residence for use by family and guests, that they had never used any of the portion of the premises for a commercial purpose, and that the barn in which plaintiff was injured was being converted into a recreational room for personal use … . Moreover, the affidavits of plaintiff’s employer and supervisor stating that they supervised plaintiff’s work and provided plaintiff with the tools for his work, including the saw that caused his injuries, along with defendants’ affidavits stating that they were not on site during the construction work, show that defendants did not direct, supervise, or control plaintiff’s work… . …

To the extent plaintiff’s affidavit states that three different unrelated families, including defendants’ family, the household staff, and the groundskeeper, lived at the premises, such is insufficient to negate a finding of a single-family dwelling. Under the circumstances presented, defendants and their staff were “living together and maintaining a common household” … . Furthermore, the certificate of occupancy lists all of the buildings under one address, and the alteration work on all of the buildings was covered by one building permit, also listing one address … .  Patino v Drexler, 2014 NY Slip Op 02537, 1st Dept 4-15-14

 

Aeration Tank Constituted an Unventilated Confined Area Requiring Air Quality Monitoring

The First Department determined plaintiff had stated a cause of action under Labor Law 241(6) based upon his inhalation of toxic fumes inside an aeration tank, finding the tank constituted an unventilated confined area requiring air quality monitoring:

The court properly denied the portion of defendants’ motion seeking dismissal of plaintiffs’ Labor Law § 241(6) claim as predicated on 12 NYCRR 23-1.7(g). We find that, as a matter of law, the aeration tank is an unventilated confined area requiring air quality monitoring … . Pursuant to 12 NYCRR 23-1.7(g), the atmosphere of an unventilated confined area must be monitored “where dangerous air contaminants may be present or where there may not be sufficient oxygen to support life.” Here, the cement tank is a large container used to aerate and clean sewage. Entering the tank poses a potential hazard since, as admitted by a deputy superintendent for the DEP in his deposition, a person could experience oxygen depletion as gases “displace the oxygen.” Defendants contend that in order for an area to be a confined space, as defined by 12 NYCRR 12-1.3(f), it must have a restricted means of access, such as a trap door or a manhole. We reject this argument. An area does not need to be accessible only by a narrow opening in order to have a “restricted means of egress” (12 NYCRR 12-1.3[f]). Although the top of the tank was open to the air, access was still restricted as [plaintiff] needed to use a 20-foot ladder to enter and exit the tank. Therefore, given the tank’s use in the process of filtering sewage and its restricted means of access, 12 NYCRR 23-1.7(g) is applicable.  Cerverizzo v City of New York, 2014 NY Slip Op 02385, 1st Dept 4-8-14

 

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Question of Fact Whether Out of Possession Landlord, Based on the Terms of the Lease, Had a Duty to Keep the Premises Safe (Labor Law 200)

The Second Department determined the provisions of a lease raised a question of fact about whether an out-of-possession landlord had a duty to keep the premises safe:

“Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work” … .  * * * …[T]o the extent that the plaintiff’s claims were based on a dangerous condition on the premises, specifically the structural design, construction, and condition of a portion of the floor, the defendants failed to establish their prima facie entitlement to judgment as a matter of law. “An out-of-possession landlord generally will not be responsible for injuries occurring on its premises unless the landlord has a duty imposed by statute or assumed by contract or a course of conduct” … . Here, the lease submitted by the defendants in support of their motion provided, among other things, that the defendants were required to “repair the damaged structural parts of the Premises,” that they were “not required to repair or replace any equipment, fixtures, furnishings or decorations unless originally installed by Landlord,” and that they retained the “right to enter into and upon said premises, or any part thereof . . . for the purpose of . . . making such repairs or alterations therein as may be necessary for the safety and preservation thereof.” Based on these provisions, under the circumstances of this case, the defendants failed to establish as a matter of law that they did not have a duty imposed by contract to remedy the specific dangerous or defective condition alleged here. Thus, to prevail on their motion, the defendants were required to establish that they neither created the alleged dangerous or defective condition nor had actual or constructive notice thereof … . Here, the defendants failed to establish, prima facie, that they did not create the dangerous or defective condition alleged by the plaintiff to have contributed to his fall.  Quituizaca v Tucchiarone, 2014 NY Slip Op 02024, 2nd Dept 3-26-14

 

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Finding by Workers’ Compensation Law Judge Precluded Suit Under Labor Law and Common Law Negligence

Over a two-justice dissent, the Fourth Department determined the finding that no accident occurred by the Workers’ Compensation Law Judge precluded plaintiff from suing under the Labor Law and common law negligence for an injury allegedly incurred while working on a house.  The court rejected the argument that the Workers’ Compensation proceeding dealt soley with the existence or non-existence of an employer-employee relationship:

The doctrine of collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” … . Thus, “[t]he quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal” … . “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action” … .Here, defendant met his burden on his motion by establishing the “identicality and decisiveness of the issue” decided in the workers’ compensation proceeding… . Ridge v Gold, et al, 1300, 4th Dept 3-21-14

 

Construction Manager Not Liable Under Labor Law 241(6), Labor Law 200, or Under Common Law Negligence/No Control Over Work or Responsibility for the Premises

Over a dissent, the Fourth Department determined a construction manager was not liable as an agent of the owner under Labor Law 241(6) because the manager did not control the activity which resulted in the injury.  In addition the court determined the Labor Law 200 and common law negligence causes of action should hav been dismissed:

A construction manager may be liable as an agent of the owner if “the manager had the ability to control the activity which brought about the injury” … . “ ‘Defendant established as a matter of law that it was not an agent of the owner because the owner had not delegated to it the authority to supervise and control plaintiff’s work’ ” … . Pursuant to the express terms of the contract between defendant and the District, defendant “had no control over or responsibility for the safety of the workers at the construction site” … . The deposition testimony and affidavits submitted by defendant established that defendant acted in accordance with its authority under the contract, i.e., coordinating the schedules of the contractors and ensuring that their work complied with the requirements of the construction documents, and did nothing more. * * *

“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 Labor Law § 200” … . On the other hand, where the “ ‘plaintiff’s injuries stem not from the manner in which the work was being performed[ ] but, rather, from a dangerous condition on the premises, [an owner or] general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition’  … . Regardless of which theory applies here, defendant was not an agent of the owner and “was not responsible either for the performance of [plaintiff’s] work or the premises on which that work was undertaken” … . Hargrave…v LeChase Construction Services LLC, 1373, 4th Dept. 3-21-14

 

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