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Homeowner Not Liable for Construction-Related Death—Criteria for Homeowner’s Exemption and Supervisory Control by Homeowner Described in Some Depth

The Third Department determined the homeowner was not liable to plaintiff’s decedent (under Labor Law 200, 240, 241 (6) or common law negligence) based on the homeowners’ exemption and absence of supervision (by the homeowner) of plaintiff’s decedent’s work.  The homeowner had provided architectural plans to a contractor for an addition to the home.  Plaintiff’s decedent was digging a trench for the basement and was buried and killed when the walls of the trench collapsed.  The court explained the applicable law in unusual detail:

Although Labor Law §§ 240 (1) and 241 “impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities” …, the Legislature carved out an exception for “owners of one and two-family dwellings who contract for but do not direct or control the work” (Labor Law §§ 240 [1]; 241 [6]…). “In this context, the phrase direct or control is to be strictly construed and, in ascertaining whether a particular homeowner’s actions amount to direction or control of a project, the relevant inquiry is the degree to which the homeowner supervised the method and manner of the actual work being performed by the [injured] party” … . That is, “the owner must significantly participate in the project before he or she will be deemed to have crossed the line from being a legitimately concerned homeowner to a de facto supervisor” who is not entitled to the exemption … . * * *

…[U]nder established case law, “neither providing site plans, obtaining a building permit, hiring contractors, purchasing materials, offering suggestions/input, inspecting the site, retaining general supervisory authority, performing certain work, nor physical presence at the site, operates to deprive a homeowner of the statutory exemption — so long as the homeowner did not exercise direction or control over the injury-producing work” … . …

We reach a similar conclusion with respect to plaintiff’s Labor Law § 200 claim, which codifies the common-law duty of owners and general contractors “to maintain a safe construction site” … . As a precondition to the imposition of liability upon defendant as a homeowner, “it must be shown that [defendant] exercised supervisory control over [decedent’s] work and had actual or constructive knowledge of the unsafe manner in which the work was being performed” … . “When an alleged defect or dangerous condition arises from [a] 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” … . Even “[t]he retention of general supervisory control, presence at a work site, or authority to enforce safety standards is insufficient to establish the control necessary to impose liability” … . Peck v Szwarcberg, 2014 NY Slip Op 08290, 3rd Dept 11-26-14

 

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Defendant Homeowner Demonstrated She Did Not Have Actual or Constructive Notice of the Dangerous Condition and Did Not Create the Dangerous Condition (Deck Collapsed When Plaintiff Was Inspecting the Property Prior to Beginning Work)

The Second Department affirmed the grant of summary judgment to the defendant homeowner.  While inspecting defendant’s property before beginning work, the deck collapsed when plaintiff was walking on it.  The plaintiff sued under Labor Law 200 and common law negligence, alleging a dangerous condition.  Defendant demonstrated she did not have actual or constructive notice of the condition:

Where, as here, a plaintiff’s alleged injury arose from a dangerous condition on the premises, a property owner moving for summary judgment dismissing causes of action alleging common-law negligence and a violation of Labor Law § 200 has the initial burden of showing that he or she neither created the dangerous condition nor had actual or constructive notice of it … . A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … . “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” … .

Here, the defendant demonstrated her prima facie entitlement to judgment as a matter of law by establishing that the she did not have actual or constructive notice of the defect in the deck, which was latent and not discoverable upon a reasonable inspection. The defendant further demonstrated that she did not create the defect. Nicoletti v Iracane, 2014 NY Slip Op 07991, 2nd Dept 11-19-14

 

Wooden Flooring With Gaps Between the Planks Constituted an Elevation-Related Hazard

The First Department noted that wooden planks with gaps between them high above the bottom of a shaft constituted and elevation-related hazard to which Labor Law 240 (1) applied “regardless of whether the flooring was permanent.”  Kircher v City of New York, 2014 NY Slip Op 07951, 1st Dept 11-18-14

 

Owners’ Intent, at the Time Plaintiff Was Injured, to Use the Property As a Second Home Triggered the Homeowners’ Exemption to Labor Law Liability Notwithstanding that the Owners Never Occupied the Property and Started Leasing It Two Years After the Accident

The First Department, over a dissent, determined that plaintiff was unable to raise a question of fact about whether defendant-homeowners intended to use the renovated house as income property,  Therefore the homeowners’ exemption under Labor Law 240(1) and 241(6) precluded recovery for injuries suffered by the plaintiff during the renovation.  The homeowners did not direct or control plaintiff’s work. The accident occurred in 2005.  One of the owners, Parry, testified that they intended to use the place as a second home.  In 2007, having never occupied the house, the owners decided to lease the house and did so.  The court determined the owners’ intent at the time of the accident in 2005 controlled:

The owners made a prima facie showing of their entitlement to the homeowner’s exemption by demonstrating that their premises consist of a one-family dwelling and that they did not direct or control plaintiff’s work … . Therefore, the burden shifted to plaintiff to “produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” … . Plaintiff has failed to meet this burden as his arguments before this Court and the motion court are based on unfounded speculation that the owners intended to use the house solely for commercial purposes.

The availability of the homeowner’s exemption hinges upon “the site and the purpose of the work, a test which must be employed on the basis of the homeowners’ intentions at the time of the injury” … . Accordingly, plaintiff and the dissent misplace their reliance on the lease, which the owners entered into almost two years after plaintiff’s injury. Farias v Simon, 2014 NY Slip Op 07932, 1st Dept 11-18-14

 

Worker Struck by Falling Brick Entitled to Summary Judgment/Comparative Negligence Is Not a Defense to a Labor Law 240(1) Claim

The First Department determined that summary judgment pursuant to Labor Law 240(1) was properly granted to a worker struck by a falling brick.  The court noted that comparative negligence is not a defense to a Labor Law 240(1) action:

Plaintiff established his entitlement to judgment as a matter of law on the issue of liability on his Labor Law § 240(1) claim by submitting, among other things, his testimony that he was performing his assigned work of cleaning debris from the ground level, just outside the north side of the subject building under construction, when he was suddenly struck by a falling brick, in the absence of any overhead netting or other such protective devices … . Defendants’ witnesses further established their liability by confirming that the brick fell out of the hands of a masonry worker several stories above plaintiff, and that safety netting which had been installed on other sides of the building was absent from the north exterior. The lack of overhead protective devices was a proximate cause of plaintiff’s injuries under any of the conflicting accounts …, and plaintiff’s comparative negligence is not a defense to a Labor Law § 240(1) claim… . Hill v Acies Group LLC, 2014 NY Slip Op 07601, 2nd Dept 11-6-14

 

Criteria for Causes of Action Under Labor Law 200 and Common Law Negligence (Where the Methods or Materials of the Work Are Alleged to Be the Cause of the Injury) Explained

In finding that the Labor Law 200 and common law negligence causes of action should have been dismissed, the Second Department explained the criteria for those causes of action when they are based on the manner in which work is performed, as opposed to dangerous or defective conditions on the premises:

A cause of action alleging a violation of Labor Law § 200 or common-law negligence may arise from either dangerous or defective premises conditions at a work site or the manner in which the work is performed … . Where, as here, a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work … . A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed … . Rodriguez v Trades Constr Servs Corp, 2014 NY Slip Op 07141, 2nd Dept 10-22-14

 

Injury While Trying to Prevent a Ladder (Used by a Co-worker) from Falling Is Covered Under Labor Law 240 (1)

The Second Department determined plaintiff’s accident was covered under Labor Law 240(1).  Plaintiff (Passantino) was steadying an unsecured ladder used by a co-worker.  When he let go of the ladder to pick up some cable, the ladder started to slip.  Plaintiff was injured while trying to prevent the ladder from falling:

Contrary to the defendant’s contention, the hazard presented here is one contemplated by Labor Law § 240(1) … . Indeed, the harm to Passantino was “the direct consequence of the application of the force of gravity” to the ladder … . The plaintiffs met their prima facie burden of establishing their entitlement to judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1) by demonstrating that the defendant failed to provide Passantino with a safety device, and that this violation was a proximate cause of his injuries… . Passantino v Made Realty Corp, 2014 NY Slip Op 07136, 2nd Dept 10-22-14

 

Injury Caused by Movement and Toppling of a Dry Wall Cart Not Covered by Labor Law 240(1)

The Fourth Department determined an injury related to the toppling of a cart carrying drywall was not covered under Labor Law 240 (1):

At the time of the accident, plaintiff was standing on the ground, the drywall on the cart was not being hoisted or secured, and the cart was not being hoisted or otherwise moved vertically … . We conclude that plaintiff’s injuries were not the direct consequence of a failure to provide blocks or stays to protect against a risk arising from a physically significant elevation differential; here, the function of such devices would not have been to protect plaintiff from the effects of gravity … . In our view, defendants established as a matter of law “that the 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)” … . Miles v Buffalo State Alumni Assn Inc, 2014 NY Slip Op 06732, 4th Dept 10-3-14

 

Cleaning Clogged Drain Was Routine Maintenance, Not Covered by Labor Law 240(1)

The Fourth Department determined plaintiff was engaged in routine maintenance, not repair, and therefore his injury from a fall from a ladder was not covered under Labor Law 240(1):

Addressing … the Labor Law § 240 (1) cause of action, we conclude that plaintiff was not “repairing” the corrosion chamber at the time he was injured, and thus that he was not engaged in a protected activity under section 240 (1). Rather, defendants established as a matter of law that plaintiff was involved in “routine maintenance in a non-construction, non-renovation context” … . The court therefore properly granted that part of defendants’ motion with respect to that cause of action and denied plaintiffs’ cross motion. Neither the corrosion chamber nor the components of the “drainage system,” i.e., the floor drain and plastic piping, were in need of “repair.” Rather, the drain was clogged, at least in part as a result of the normal operation of the chamber. Plaintiff testified at his deposition that the clog consisted of “paper and what looked to be like pieces of wooden dowel from like Q-tips that they use,” i.e., parts of samples that had been placed in the chamber on prior occasions, as well as an unknown substance. Although plaintiff and his supervisor testified that dirty conditions in the chamber could potentially compromise test results, there is no evidence that the chamber was ” inoperable or malfunctioning prior to the commencement of the work’ ” … . Further, there is no evidence that plaintiff had to use specialized tools or any tools at all to take apart the plastic piping. Indeed, defendants’ expert averred that the PVC piping had no mechanical fasteners and was “merely a friction fit, therefore, it would be a routine task to remove.” Plaintiff then used an air hose, metal wire, and a water hose to remove the clog, all of which were readily accessible to and used by him in the course of his employment. Leathers v Zaepfel Dev Co Inc, 2014 NY Slip Op 06691, 4th Dept 10-3-14

 

Labor Law 200 Cause of Action Requires Supervisory Control Over How Plaintiff Carries Out the Injury-Producing Work

The Fourth Department, in affirming the dismissal of the common-law negligence and Labor Law 200 causes of action, explained the operative criteria:

Labor Law § 200 codifies “the common-law duty of a landowner to provide workers with a reasonably safe place to work” … , and it therefore encompasses the duty underlying plaintiff’s negligence cause of action. A precondition to the duty under Labor Law § 200 ” is that the party charged with that responsibility have the authority to control the activity bringing about the injury’ ” … . Thus, liability under Labor Law § 200 cannot be imposed on a defendant if “there is no evidence that [the] defendant exercised supervisory control or had any input into how” the plaintiff carried out the injury-producing work … .

Here, all three moving defendants met their initial burdens of establishing as a matter of law that they did not have supervisory control over plaintiff’s work and did not have input into how he performed his work. Jones v County of Erie, 2014 NY Slip Op 06726, 4th Dept 10-3-14

 

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