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Contract Between Town and Employer of Injured Employee Did Not Allow Indemnification of Town by Employer

In a Labor Law action seeking damages for a fall from the roof of a building under construction, the Fourth Department determined Supreme Court should have dismissed the town’s motion for contractual indemnification against plaintiff’s employer because the contract was not intended to be retroactive to the day of the injury.  The Fourth Department explained the applicable law as follows:

“Workers’ Compensation Law § 11 prohibits a third-party action against an employer unless the plaintiff sustained a grave injury or there is ‘a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution or indemnification of the [third party plaintiff]’ ”… .  The Town concedes that plaintiff did not suffer a “grave injury,” and that it is entitled to indemnification only if it can demonstrate the existence of a written contract.  “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” … .  Meabon v Town of Poland…, 634, 4th Dept 7-19-13

 

Labor Law 240(1) Action Not Implicated by Portion of Ceiling Falling

The Second Department determined a Labor Law 240(1) action should have been dismissed.  As plaintiff was attempting to paint the ceiling while standing on a ladder, a portion of the ceiling fell, causing injury.  In explaining why section 240 does not apply to the facts, the court wrote:

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”…. “With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured'”… . Thus, to recover damages for violation of the statute, a “plaintiff must show more than simply that an object fell causing injury to a worker” … . The plaintiff must show that, at the time the object fell, it was “being hoisted or secured” (id. at 268) or “required securing for the purposes of the undertaking”… . Flossos v Waterside Redevelopment Co LP, 2013 NY Slip Op 05297, 2nd Dept 7-17-13

 

Unsafe Access to Roof Supported Summary Judgment

In affirming the grant of summary judgment to the plaintiff pursuant to Labor Law 240 (1) based on the failure to provide equipment which would allow safe access to the roof where the window-washing equipment in need of repair was located, the First Department explained:

The record demonstrates that the Met and Lincoln Center failed to provide adequate safety devices to protect plaintiff from the risks associated with gaining access to the Opera House roof and the steel carriage rail, and therefore they are liable for plaintiff’s injuries under Labor Law § 240(1)…. Not only did plaintiff have to be elevated to the roof of the Opera House from the sixth floor, for which a ladder was provided, but he also had to use both hands to close the hatch door while standing on the ladder. No safety device was provided to protect him against the risk associated with breaking three-point contact with the ladder so as to use both hands to close the hatch door. Mayo v Metropolitan Opera Assn Inc, 2013 NY Slip Op 04993, 1st Dept 7-2-13

 

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The Term “Casualty” In Lease Covered Flooding Due to Malfunctioning HVAC System

The First Department determined Supreme Court should have denied plaintiff’s motion for summary judgment. Plaintiff was the owner and landlord of a building and defendant was a commercial tenant.  Section 7.04 of the lease stated: “each party releases the other with respect to any claim (including a claim for negligence) which it might otherwise have against the other party for loss, damage or destruction with respect to its property by fire or other casualty . . . occurring during the terms of this Lease” … .  A gauge in the HVAC system burst, causing flooding. Plaintiff sued defendant for the cost of repair, alleging defendant failed to maintain the HVAC system.  The issue was whether the word “casualty” in the lease meant “act of god” only, or included damage from human error.  The First Department (reversing Supreme Court) determined human error was included in the meaning of “casualty:”

[W]here a clause is unambiguous, contract language and terms are to be given their plain and ordinary meaning…. Here, the lease provides that the parties agreed on mutual releases in case of damage “by fire or other casualty.” In light of this phrasing, in which “other casualty” is placed in the same category as “fire,” it cannot be said that the word “casualty” excludes events resulting from human error. On the contrary, a fire might have myriad causes, many of which do result from human error. However, the parties did not restrict the types of fires that would fall under the release — for example, by stating that only fires caused by severe weather or other natural causes would trigger a release from liability. Accordingly, the phrase “fire or other casualty,” as construed by an ordinary business person, would describe an event, rather than the cause of that event. 45 Broadway Owner LLC v NYSA-ILA Pension Trust Fund, 2013 NY Slip Op 04895, 1st Dept 6-27-13

 

Bed and Breakfast Not Entitled to Homeowner’s Exemption

The Third Department determined the owner of a bed and breakfast was not entitled to the homeowner’s exemption from the Labor Law:

…[A]lthough “[b]oth 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 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”….    That exemption, however, “is not available to an owner who uses or intends  to use  [the] dwelling  only  for commercial  purposes”… .  Bagley v Moffett, 515914, 3rd Dept 6-27-13

 

Glass Plate in Wall Under Demolition Was Not a “Falling Object” within the Meaning of Labor Law 240 (1)

The Second Department determined injury caused by a glass plate that cracked and fell on plaintiff during demolition was not a “falling object” injury within the meaning of Labor Law 240 (1) because the glass did not requiring securing and the accident was not due to the absence of safety equipment:

The Supreme Court should have granted that branch of the defendants’ cross motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). Not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240(1) ….. To recover, 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 also must show that the object fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute” …. Here, the glass pane that caused the plaintiff’s injuries was slated for demolition at the time of the accident, and the defendants established, prima facie, that the glass pane was not an object that required securing for the purposes of the undertaking, that is, the demolition… .  Maldonado v AMMM Props Co, 2013 NY Slip Op 04781, 2nd Dept 6-26-13

 

Worker Taking Onsite Measurements for Offsite Fabrication Covered Under Labor Law 240 (1)

The Second Department determined that a worker who was injured while he was taking measurements at the worksite for stonework which was to be fabricated offsite was engaged in a covered activity under the Labor Law.  The court further found that the absence of safety equipment supported summary judgment in favor of the worker even though no one witnessed the accident. With respect to “covered activity,” the Second Department wrote:

To invoke the protections afforded by Labor Law § 240(1), a ” plaintiff must demonstrate that he [or she] was both permitted or suffered to work on a building or structure and that he [or she] was hired by someone, be it owner, contractor or their agent,'” to work at the site…. Moreover, the plaintiff must have, at the time of the accident, been engaged in a “covered activity” under the statute…. “Section 240 is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are scarcely in a position to protect themselves from accidents,” and it is to be liberally construed to achieve this purpose…. Here, [plaintiff] had been hired to fabricate sills, lintels, and coping stones to be used in the construction of the subject building. Part of that job included going to the work site and climbing to the roof of the building to take measurements in preparation for the fabrication. Thus, the injured plaintiff was performing a task ancillary to the construction work and was engaged in a “covered activity” within the meaning of Labor Law § 240(1) … .  Gallagher v Resnick, 2013 NY Slip Op 04774, 2nd Dept 6-26-13

 

Worker Taking Onsite Measurements for Offsite Fabrication Covered Under Labor Law 240 (1)

The Second Department determined that a worker who was injured while he was taking measurements at the worksite for stonework which was to be fabricated offsite was engaged in a covered activity under the Labor Law.  The court further found that the absence of safety equipment supported summary judgment in favor of the worker even though no one witnessed the accident. With respect to “covered activity,” the Second Department wrote:

To invoke the protections afforded by Labor Law § 240(1), a ” plaintiff must demonstrate that he [or she] was both permitted or suffered to work on a building or structure and that he [or she] was hired by someone, be it owner, contractor or their agent,'” to work at the site…. Moreover, the plaintiff must have, at the time of the accident, been engaged in a “covered activity” under the statute…. “Section 240 is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are scarcely in a position to protect themselves from accidents,” and it is to be liberally construed to achieve this purpose…. Here, [plaintiff] had been hired to fabricate sills, lintels, and coping stones to be used in the construction of the subject building. Part of that job included going to the work site and climbing to the roof of the building to take measurements in preparation for the fabrication. Thus, the injured plaintiff was performing a task ancillary to the construction work and was engaged in a “covered activity” within the meaning of Labor Law § 240(1) … .  Gallagher v Resnick, 2013 NY Slip Op 04774, 2nd Dept 6-26-13

 

Alleged Failure to Secure Mirror Which Fell During Removal Required Jury Charge on “Falling Objects” Theory

The Second Department determined Supreme Court erred when it did not charge the jury with Labor Law 240(1) as it applies to falling objects.  The plaintiff was injured when removing a mirror from the ceiling of a shower stall:

…[T]he trial court erred in failing to charge the jury in connection with Labor Law § 240(1) as it applies to falling objects, such as the mirror in this case. “[L]iability may be imposed where an object or material that fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell'”…. Moreover, whether the statute applies in a falling object case “does not . . . depend upon whether the object has hit the worker” but “whether the harm flows directly from the application of the force of gravity to the object”….  Here, the plaintiff contended that the accident occurred not only due to the wobbly ladder, but also because the mirror was not properly secured during the removal process, thus causing it to fall. While the object that fell was to be removed as part of the project, the location in which that item was situated and the lack of any device to protect the worker directly below it from a clear risk of injury raise a factual issue as to whether the object required securing for the purposes of the undertaking… .  Saber v 69th Tenants Corp, 2013 NY Slip Op 04591, 2nd Dept, 6-19-13

 

Dismissal of Labor Law 240, 241 and 200 Actions

In affirming the dismissal of Labor Law causes of action against a defendant who was not an owner, contractor or statutory agent, and who did not supervise or control work performance, the Second Department explained the relevant principles:

Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents (see Labor Law §§ 240[1], 241[6];…). A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured…. Similarly, where, as here, a claim against a defendant arises out of alleged defects or dangers in the methods or materials of the work, recovery cannot be had under Labor Law § 200 or pursuant to the principles of common-law negligence unless it is shown that the party to be charged under that theory of liability had the authority to supervise or control the performance of the work .   Medina v RM Resources, 2013 NY Slip Op 04582, 2nd Dept, 6-19-13

 

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