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Being Thrown from the Forks of a Forklift Is a Gravity Related Event Under Labor Law 240 (1)

The First Department determined that being thrown from the front forks of a forklift (Bobcat) is a gravity related event covered by the Labor Law:

…[W]e find that falling from the Bobcat is the type of gravity related event contemplated by the Court of Appeals in Runner v New York Stock Exch., Inc. (13 NY3d 599 [2009]). In Potter v Jay E. Potter Lumber Co., Inc. (71 AD3d 1565 [4th Dept 2010]), the [4th] Department, relying on Runner, similarly found that a worker, who like plaintiff here, was positioned as a counterweight for a load on a forklift and was catapulted forward when the forklift became unstable, was entitled to the protection of Labor Law § 240(1). Penaranda v 4933 Realty, LLC, 2014 NY Slip Op 01547, 1st Dept 3-11-14

 

Operating a Scaffold for the Benefit of an Enumerated Activity Done by Others (Caulking) Entitles Scaffold Operator to Coverage Under Labor Law 240 (1)

The First Department determined a scaffold operator was entitled to summary judgment on his Labor Law 240 (1) claim. The scaffold was being operated for the benefit of caulkers who could not do their work without the scaffold operator:

Although plaintiff …. was not operating the scaffold in his capacity as a window washer at the time of the accident, he was operating it for the caulkers who could not have safely discharged their duties without him. Since caulking is an activity of the sort enumerated in Labor Law § 240(1) …, plaintiff is entitled to the same statutory protection as the caulkers, and his Labor Law § 240(1) claim against 888 Seventh Avenue should not be dismissed. Further, given the evidence that the lanyard and harness provided to plaintiff proved inadequate to shield him from falling through the rail track, plaintiff is entitled to summary judgment on the issue of liability on that claim … . DeJesus v 888 Seventh Ave LLC, 2014 NY Slip Op 01273, 1st Dept 2-25-14

 

In a Falling Object Case, the Device Which Failed Was Not a Safety Device—Defendant Not Liable

In a full-fledged opinion by Judge Pigott, over a dissent, the Court of Appeals determined the action based upon injury from a falling conduit should have been dismissed because the device which failed was not a safety device:

Labor Law § 240 (1) … requires owners and contractors to provide proper protection to those working on a construction site … . It imposes absolute liability where the failure to provide such protection is a proximate cause of a worker's injury … .In order to prevail on summary judgment in a section 240 (1) “falling object” case, the injured worker must demonstrate the existence of a hazard contemplated under that statute “and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” … . Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being “hoisted or secured” …, or “required securing for the purposes of the undertaking” … . Contrary to the dissent's contention, section 240 (1) does not automatically apply simply because an object fell and injured a worker; “a plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device … of the kind enumerated in the statute” … .

The Appellate Division … in denying summary judgment to defendants … , because they established as a matter of law that the conduit did not fall on plaintiff due to the absence or inadequacy of an enumerated safety device.

The compression coupling, which plaintiff claims was inadequate, is not a safety device “constructed, placed, and operated as to give proper protection” from the falling conduit. Its only function was to keep the conduit together as part of the conduit/pencil box assembly. The coupling had been installed a week before the incident and had been serving its intended purpose until a change order was issued and plaintiff dismantled the conduit/pencil box assembly. Fabrizi v 1095 Avenue of the Americas…, 15, CtApp 2-20-14

 

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Subcontractor Which Does Not Supervise or Control Injured Worker May Be Liable Under Common Law Negligence Where It Creates an Unreasonable Risk of Harm

In the course of a decision which discussed several Labor Law issues, the Second Department noted when a subcontractor (here MCN) may be held liable under common law negligence, even where the subcontractor has no authority to supervise or control the injured party’s work:

A subcontractor may be held liable for negligence where the work it performed created the condition that caused the plaintiff’s injury, even if it did not possess any authority to supervise or control the plaintiff’s work or work area … . In response to MCN’s prima facie showing with respect to this cause of action, the plaintiff raised a triable issue of fact as to whether MCN’s employee created an unreasonable risk of harm that was a proximate cause of the plaintiff’s injuries… . Van Nostrand v Race & Rally Constr Co Inc, 2014 NY Slip Op 00651, 2nd Dept 2-5-14

 

Question of Fact Whether Vacuuming an HVAC Duct Was a Covered Cleaning Activity Under the Labor Law

The Second Department determined there was a question of fact whether vacuuming an HVAC duct was a covered “cleaning” activity under Labor Law 240(1):

Outside the sphere of commercial window washing (which is covered by Labor Law § 240[1]), the determination of whether an activity may be characterized as “cleaning” under the statute depends on a consideration of four factors. An activity cannot be considered “cleaning” under the statute if it: “(1) is routine, in the sense that it is the type of job that occurs on a daily, [*2]weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project” … . Collymore v 1895 WWA, LLC, 2014 NY Slip Op 00320, 2nd Dept 1-22-14

 

“Foreseeability” In the Context of a Building Collapse

The First Department explained the “foreseeability” aspect of a Labor Law 240(1) action stemming from the collapse of a building:

A plaintiff in a case involving collapse of a permanent structure must establish that the collapse was “foreseeable,” not in a strict negligence sense, but in the sense of foreseeability of exposure to an elevation-related risk… . Garcia v Neighborhood Partnership Hous Dev Fund Co Inc, 2-14 NY Slip Op 00298, 1st Dept 1-21-14

 

Labor Law 241(6) Action Should Not Have Been Dismissed/Power Washing Was Integral to the Painting Process and Was Not “Routine Maintenance”

The Second Department determined the Labor Law 241(6) action should not have been dismissed because the work plaintiff was doing, power-washing a building in preparation for painting, was not “routine maintenance,” but rather was an integral part of the painting process:

The defendants failed to establish their prima facie entitlement to judgment as a matter of law, since they did not demonstrate that the plaintiff, who was injured while power washing buildings in preparation for painting them, was not engaged in a specifically enumerated activity under 12 NYCRR 23-1.4(b)(13). Painting is an activity enumerated under that provision …, and the power washing performed here … was in preparation for, and a contractual part of, the painting work. Accordingly, the power washing did not constitute “routine maintenance” excluded from the ambit of Labor Law § 241(6), but rather, constituted surface preparation, an integral part of the painting process contemplated by the parties.  Dixson v Waterways at Bay Pointe Home Owners Assn Inc, 2013 NY Slip Op 08591, 2nd Dept 12-26-13

 

Comparative Negligence Not Available in Labor Law 240 (1) Action—Claimant Entitled to Partial Summary Judgment—Suspended Cable On Which Claimant Was Walking to Access Scaffolding Broke

The Third Department determined claimant was entitled to partial summary judgment on his Labor law 240 (1) action.  A cable suspended under a bridge (which held up scaffolding) broke when claimant was walking on the cable to get to the scaffolding. The defendant countered that the workers were instructed to use ladders, not the suspended cables, to access the scaffolding, and claimant should have attached his lanyard to a separate safety cable, not the cable he was walking on:

The purpose of the suspension cables at the work site was to support workers and materials at the elevated height where the work necessarily occurred.  The cable that broke failed to fulfill this fundamental function, and that failure resulted in claimant’s fall.  Claimant established a prima facie case for liability under Labor Law § 240 (1).  Defendant produced proof that, contrary to claimant’s assertion, a separate safety cable was available that he should have used instead of attaching his lanyard to the cable upon which he was walking.  By attaching his lanyard to the suspension cable, claimant protected against the risk of falling but not the possibility of the cable breaking. While this action by claimant could go to comparative negligence (which is not available in a Labor Law § 240 [1] action), it was not the sole proximate cause of the accident and does not establish the recalcitrant worker defense … .

Similarly, the assertion that ladders were available and workers had been instructed to use them instead of walking across the suspension cables does not raise a triable issue under the circumstances of this claim.  This is not a case where claimant lost his balance and fell off the cable while using it instead of the safer way to access the scaffold via a ladder.  Here, the cable broke.  Hence, a device intended to support a worker at an elevated height failed, and that failure was a proximate cause of claimant’s injury.  “Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a [claimant’s] injury) to occupy the same ground as a [claimant’s] sole proximate cause for the injury” … . Accordingly, claimant was entitled to partial summary judgment on his Labor Law § 240 (1) claim.  Portes v New York State Thruway Authority, 516749, 3rd Dept 12-5-13

 

Object’s Fall of 1 ½ Feet Constituted Physically Significant Elevation Differential for Purposes of Requiring a Safety Device Pursuant to Labor Law 240 (1)

In this 240(1) action, the Third Department determined Supreme Court erred when it found that the accident did not arise form a physically significant elevation differential.  Plaintiff was struck by part of a roll carrier (re: a roll of roofing membrane) after the roll fell to the roof. Prior to the incident the roll carrier had been positioned about a foot and a half above the roof:

In determining whether an elevation differential is physically significant or de minimis, we must take into account “‘the weight of the [falling] object and the amount of force it was capable of generating, even over the course of a relatively short descent'” … .  Here, for purposes of defendants’ motion, plaintiff established that a membrane roll weighing between 600 and 800 pounds was hoisted by the roll carrier to a height of approximately 1½ feet off the roof’s surface at the time of the accident.  In our view, despite the relatively short distance that the membrane roll fell, it constituted a significant elevation differential given its substantial weight and the powerful force it generated when it fell, so as to require a safety device as set forth in Labor Law § 240 (1) … .  Accordingly, Supreme Court should not have granted defendants’ motion for summary judgment dismissing the Labor Law § 240 (1) cause of action on this basis.  Jackson v Heitman Funds/191 Colonie LLC. 516248, 3rd Dept 11-27-13

 

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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

 

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