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Failure to Wear Hard Hat Does Not Preclude 240(1) Claim

he First Department determined a worker was entitled to partial summary judgment on a 240(1) claim based on a falling pipe striking him in the head.  The fact that the worker was not wearing a hard hat did not raise a triable issue of fact on the 240(1) claim:

The evidence demonstrates that plaintiff, a welder who was working at a power plant that was being constructed, was struck on the head by a pipe that fell from a height of approximately 85 to 120 feet as a result of a gap in a toeboard installed along a grated walkway near the top of a generator in the power plant … . It is undisputed that there was no netting to prevent objects from falling on workers and contrary to defendants’ contention, plaintiff is not required to show exactly how the pipe fell, since, under any of the proffered theories, the lack of protective devices was the proximate cause of his injuries …. Nor is plaintiff required to show that the pipe was being hoisted or secured when it fell, since that is not a precondition to liability pursuant to Labor Law § 240(1) … .

In opposition, defendants failed to raise a triable issue of fact since they failed to show that adequate protective devices required by Labor Law § 240(1) were employed at the site. That plaintiff was wearing a welding hood but not a hard hat does not raise an issue of fact since “[a] hard hat is not the type of safety device enumerated in Labor Law § 240(1) to be constructed, placed and operated, so as to give proper protection from extraordinary elevation-related risks to a construction worker” … . Mercado v Caithness Long Is LLC, 2013 NY Slip Op 02005, 9634, 102473/09, 590277/11, 1st Dept 3-26-13

 

Scaffold, Safety Railing and Cross Braces Are Safety Devices

In affirming the denial of summary judgment to the plaintiff in a Labor Law 240 (1) action based upon plaintiff’s fall from a scaffold, the Fourth Department noted that a scaffold, safety railing and cross braces are safety devices:

We agree with defendants … that the scaffold itself and the safety railing and cross braces on it constitute safety devices, and that the evidence submitted by plaintiff raises an issue of fact whether the safety devices provided by defendants afforded him proper protection, or whether additional devices were necessary … .

Justice Whalen dissented, arguing that, under the circumstances of plaintiff’s work on the scaffold, the safety railing and cross railings were not adequate safety devices. Kuntz v WNYG Housing Development Fund Company, Inc., et al, 1382, CA 12-00986, 4th Dept. 3-22-13

 

Ice and Snow Accumulation of Floor of Building Constituted Negligence as a Matter of Law 

The Fourth Department determined a worker was entitled to summary judgment under Labor Law 241 (6) based on a slip and fall on ice and snow.  The ice and snow had accumulated on the floor of a building where the worker was framing interior walls:

Plaintiff alleged that defendants were liable for his injury pursuant to Labor Law § 241 (6) based on their alleged violation of 12 NYCRR 23-1.7 (d), which concerns slipping hazards arising from, inter alia, ice and snow. It is undisputed that there were in fact accumulations of ice and snow and that [defendant construction company] was made aware of that fact. Defendants presented no evidence in opposition to demonstrate that the floor was reasonably and adequately safe despite the violation (see § 241 [6]), and thus the court properly determined as a matter of law that defendants were negligent. Thompson v 1241 PVR, LLC, et al, 270, CA 12-01485, 4th Dept. 3-22-13

 

Liability of Prime Contractors and Subcontractors Explained

In affirming the motion court’s grant of summary judgment to the defendant prime contractor and defendant subcontractors, the Second Department clearly described the relevant proof requirements for Labor Law 200, 240 (1), 241 (6) and common-law negligence causes of action.  Giovanniello v E W Howell, Co., LLC, 2013 NY Slip Op 01805, 2011-11465, Ind No 26676/09, 2nd Dept. 3-20-13

 

Meaning of “Passageway” at Work Site Explained

The Fourth Department. in this negligence, Labor Law 200 and Labor Law 241 (6) action discussed the applicable theories of notice and liability for an allegedly dangerous condition just outside a portable toilet at the work site which caused plaintiff to fall and sustain injury. With respect to the Labor Law 241 (6) cause of action, the Court determined that the area where the accident occurred was not a “passageway” within the meaning of 12 NYCRR 23-1.7(e)(1) which provides that passageways shall be kept free of obstructions.  Justice Whalen dissented, arguing that 12 NYCRR 23-1.7(e)(1) applied and there was an issue of fact whether the regulation was violated.  Steiger v LPCiminelli, Inc., et al, 1439, CA 12-01229, 4th Dept. 3-15-13​

 

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Knowledge of Dangerous Condition May Make Owner Liable Even Where Owner Exercises No Supervisory Control Over Contractor’s Operation.

The Fourth Department held: “ ‘It is settled law that where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attached to the owner under the common law or under section 200 of the Labor Law …’.  Defendant, however, may be liable for common-law negligence or the violation of Labor Law [section] 200 if it ‘had actual or constructive notice of the allegedly dangerous condition on the premises which caused the … plaintiff’s injuries, regardless of whether [it] supervised [plaintiff’s] work’ …”.  Ferguson vs Hanson Aggregates New York, Inc. 1460 CA 12-00596 Fourth Dept. 2-1-13

 

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“Open and Obvious” Nature of Defect Does Not Negate Duty to Keep Premises Safe.

Plaintiff brought a Labor Law and common law negligence action based upon the allegation that a 1 1/2 inch depression in a marble step at the Buffalo City Hall caused him to slip.  At the time of the accident, plaintiff was employed by a subcontractor which had been hired by defendant company.  The defendant company claimed on appeal that its duty to maintain the premises in a safe condition was obviated by the open and obvious defect in the stair.  The Fourth Department noted that the fact that the defect was “open and obvious” speaks only to plaintiff’s comparative negligence, and does not negate the defendant’s duty to keep the premises reasonably safe.  The Fourth Department went on to hold that the defendant company “failed to establish as a matter of law that the hazard posed by the stair was open and obvious and that they had no duty to warn plaintiff of that tripping hazard.”  Landahl v City of Buffalo and U & S Services, Inc., 1333, CA 12-01208 Fourth Dept. 2-1-13

 

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