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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

 

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

 

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