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Causes of Action Stated Against County for Allowing Public Traffic During Paving Operation and Violation of Regulation Requiring Truck-Brake Maintenance

The Third Department determined plaintiff had stated causes of action sounding in negligence and a violation of Labor Law 241(6).  Plaintiff was driving a truck hauling asphalt to a county roadway paving operation (which had been contracted out to a private company–Graymont) when the truck’s brakes failed. Plaintiff was seriously injured when, after avoiding public traffic, he jumped from the truck which continued on over an embankment. The court upheld the negligence claim against the county which was based upon the county’s permitting public traffic on the road during construction.  The court further determined the county was entitled to summary judgment on its indemnification action against the private construction company (Graymont—based upon the county’s contract with the company). And the court upheld the Labor Law 241(6) claim, finding the regulation requiring truck-brake maintenance supported the cause of action:

Plaintiff alleges that the County violated 12 NYCRR 23-9.7 (a),  which provides that “[t]he brakes of every motor truck shall be so maintained that such truck with full load may be securely held on any grade that may be encountered in normal use on the job.”  While the County does not dispute that this provision is sufficiently specific to form the basis for liability under Labor Law § 241 (6), it argues that the regulation is not applicable to the circumstances here.  Mindful that “[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” …, we cannot agree.  Although the regulation speaks in terms of the ability of the brakes to “h[o]ld” the construction vehicle, the purpose of the regulation is to ensure proper functioning of a truck’s brakes on any terrain or grade normally encountered.  Thus, we find that the language of the regulation addresses not only the ability of a truck’s brakes to hold a stopped truck in place, but also the ability of the brakes to bring a moving vehicle to a stop. Duffina v County of Essex…, 515346, 3rd Dept 11-14-13

 

Failure to Identify Industrial Code Violation in Pleadings Not Fatal/Supervisory Criteria for Labor Law 200(1) Action Explained

In reversing Supreme Court, the Second Department determined summary judgment should not have been granted to the defendants on the Labor Law 241(6) and 200(1) causes of action.  Plaintiff was injured when he prevented himself from falling because of a missing plank on a scaffold.  The court noted that the plaintiff’s failure to identify the breach of an Industrial Code provision in the complaint and bill of particulars was not fatal to the 241(6) claim (the allegation of a specific code violation was subsequently provided). And the court explained the criteria for liability under Labor Law 200(1):

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 …, a failure to identify the Code provision in the complaint or bill of particulars is not fatal to such a claim … . The plaintiff’s belated allegations that the defendants third-party plaintiffs violated 12 NYCRR 23-5.1(c), 23-5.1(e)(1), 23-5.1(f), and 23-5.3(f) involved no new factual allegations, raised no new theories of liability, and caused no prejudice to the defendants third-party plaintiffs …. The defendants third-party plaintiffs were put on sufficient notice that the cause of action alleging violations of Labor Law § 241(6) related to missing scaffold planks through the plaintiff’s bill of particulars and deposition testimony. Thus, they cannot reasonably claim prejudice or surprise. * * *

Where, as here, a plaintiff’s claim arises out of alleged defects or dangers in the methods or materials of the work, to prevail on a Labor Law § 200 cause of action, the plaintiff must show that the defendant “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” … . “[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”… . Klimowicz v Powell Cove Assoc, LLC, 2013 NY Slip Op 07158, 2nd Dept 11-6-13

 

Evidence of Availability of Ladders Insufficient to Defeat Summary Judgment in Favor of Plaintiff; Plaintiff Fell While Working Standing on Milk Crates

The First Department determined defendant’s claim that ladders were available was not sufficient to defeat summary judgment in favor of plaintiff who fell while standing on milk crates to work:

Plaintiff alleged that prior to performing his work he unsuccessfully looked for a ladder to use and was directed by the acting foreman to use the milk crates.

Under the circumstances, plaintiff established his entitlement to summary judgment on the issue of liability on his Labor Law § 240(1) claim. The record shows that plaintiff’s accident involved an elevation-related risk and his injuries were proximately caused by the failure to provide him with proper protection as required by section 240(1) … . Defendants’ claim that ladders were available on the site is conclusory and fails to raise an issue of fact … . The sole evidentiary support for defendants’ argument was an affidavit from an individual who claimed …that there more than enough ladders available for plaintiff’s work. Even if admissible, the affidavit failed to raise a triable issue as to whether plaintiff was the sole proximate cause of his injuries since it does not indicate that plaintiff knew that there were ladders available at the site and that he was expected to use them… . Mutadir v 80-90 Maiden Lane Del LLC, 2013 NY Slip Op 07127, 1st Dept 10-31-13

 

Plaintiff’s Failure to Replace Manhole Cover Was Sole Proximate Cause of Injury

Over a dissent, the Second Department determined plaintiff’s failure to replace a manhole cover was the sole proximate cause of his injury:

As to Labor Law § 240(1), which imposes a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks, liability would attach where a violation of that duty proximately caused injuries … . Conversely, where a plaintiff’s own actions are the sole proximate cause of the accident or injury, no liability attaches under the statute … . Where a plaintiff has an adequate safety device readily available that would have prevented the accident, and for no good reason chooses not to use it, Labor Law § 240(1) does not apply … .

Here, plaintiff was provided with the perfect safety device, namely, the manhole cover, which was nearby and readily available. He disregarded his supervisor’s explicit instruction given that day to replace the cover before dismantling the enclosure. Plaintiff has not afforded any good reason why he started taking apart the enclosure before ascertaining whether the cover was in place. Having just emerged from it, plaintiff should have known that the manhole was still open, and covering it at that time would have avoided the accident. Barreto v Metropolitan Transp Auth, 2013 NY Slip Op 07118, 1st Dept 10-31-13

 

Homeowner’s Exemption Applied/Homeowner Not General Contractor

In dismissing the action against defendant homeowner, the Third Department determined the homeowner’s exemption applied, the homeowner did not direct or supervise plaintiff’s work, and the homeowner could not be characterized as a general contractor:

Although Labor Law §§ 240 (1) and 241 each “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 has carved out an exemption for the owners of one and two-family dwellings who contract for but do not direct or control the work” … .  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 owner supervised the method and manner of the actual work being performed by the injured [party]” * * *

The case law makes clear …that 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 and common-law negligence claims.  In order to prevail on such claims, plaintiff was required to establish that defendant both “exercised supervisory control over plaintiff’s work and had actual or constructive knowledge of the unsafe manner in which the work was being performed”… . Bombard v Pruiksma, 516213, 3rd Dept 10-24-13

 

Cleaning Gutters Not Covered

The Second Department determined that cleaning out gutters is not work covered under Labor Law 240(1):

Although Labor Law § 240(1) applies to commercial “cleaning” which is not part of construction, demolition, or repair …, such as commercial window washing and sandblasting …, it does not apply to work that is incidental to regular maintenance, such as clearing gutters of debris … . Hull v Fieldpoint Community Assn Inc, 2013 NY Slip Op 06837, 2nd Dept 10-23-13

 

Agents of Property Owner Can Be Liable Under Labor Law 240(1)

In reversing a verdict after trial, the Second Department noted that the Labor Law imposes liability upon the agents of the property owner, as well as the owner and general contractor:

In addition to owners and general contractors, Labor Law § 240(1) imposes liability upon agents of the property owner who have the ability to control the activity which brought about the injury … . * * * In light of the trial evidence, the jury should have been instructed to determine whether the defendants were acting as the homeowner’s agent, with the authority to supervise and control the injured plaintiff’s work on the roof … . Accordingly, since the error was not harmless a new trial is required… . Arto v Cairo Constr Inc, 2013 NY Slip Op 05863, Second Dept 9-18-13

 

Injury from Falling Piece of Concrete-Pour-Form Raised Question of Fact About Liability Under Labor Law 240 (1)

The Second Department affirmed the denial of summary judgment in favor of defendants on plaintiff’s Labor Law 240 (1) claim. Plaintiff was removing wooden forms used to pour concrete. After removing one piece of a form, the piece above it fell and struck plaintiff. The Second Department explained:

Labor Law § 240(1) requires property owners and contractors to provide workers with “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 the workers (Labor Law § 240[1]). The purpose of the statute is to protect against “such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured” .. . However, not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240(1) …. Thus, in order to recover damages for violation of the statute, the “plaintiff must show more than simply that an object fell causing injury to a worker” .. . A plaintiff must show that, at the time the object fell, it was “being hoisted or secured” … or “required securing for the purposes of the undertaking” … . The plaintiff must also show that the object fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute”… .  . The evidence submitted by the defendants in support of their motion did not establish “the absence of a causal nexus between the worker’s injury and a lack or failure of a device prescribed by section 240(1)”.. . Ross v DD 11th Ave LLC, 2013 NY Slip Op 05686, 2nd Dept 8-21-13

 

Sheetrock Resting on Blocks Satisfied Height Differential in Labor Law 240(1) Action

The First Department determined that plaintiff was not entitled to summary judgment on her Labor Law 240(1) claim which was based on injuries from sheetrock boards which slipped from where they were leaning against a wall and resting on blocks of wood two feet high.  The two-foot height differential was sufficient to implicate 240(1).  However the record was not sufficient to find, upon a summary judgment motion, that the injuries were proximately caused by the absence of a safety device.  Rodriguez v DRLD Dev Corp, 2013 NY Slip Op 05548, 1st Dept 8-6-13.

 

Homeowner’s Exception Did Not Apply

Plaintiff lost fingers operating a table saw which was alleged not to have had a blade guard.  In determining the homeowner’s exception to the Labor Law 241(6) cause of action did not apply, the Second Department wrote:

With respect to the cause of action pursuant to Labor Law § 241(6), the appellant claimed the homeowners’ exemption for owners of one and two-family homes who did not supervise the work. In order to receive the protection of the homeowners’ exemption, a defendant must satisfy two prongs: that the work was conducted at a dwelling that is a residence for only one or two families, and the defendant did not direct or control the work … . Summary judgment on this issue was properly denied, as the evidence described above raised a triable issue of fact as to whether the appellant supervised or controlled the work and, further, there was a triable issue of fact as to whether the appellant intended to use the subject house as rental property… .  Murillo v Porteus, 2013 NY slip Op 05517, 2nd Dept 7-31-13

 

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