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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

 

Question of Fact About Whether Plaintiff’s Actions Were Sole Proximate Cause of Fall—Plaintiff Was Using Stilts for Ceiling Work

The Fourth Department, over a two-justice dissent, determined there was a question of fact concerning whether plaintiff’s actions were the sole proximate cause of his fall.  Plaintiff was using stilts to do ceiling work and slipped on ice:

…[W]e conclude that there is a triable issue of fact whether plaintiff’s actions were the sole proximate cause of his injuries. Although plaintiff met his initial burden on the motion …, defendants raised a triable issue of fact by introducing evidence that he was directed not to work in the area where the ice was located.    Thus, “ ‘[u]nlike those situations in which a safety device fails for no apparent reason, thereby raising the presumption that the device did not provide proper protection within the meaning of Labor Law § 240 (1), here there is a question of fact [concerning] whether the injured plaintiff’s fall [resulted from] his own misuse of the safety device and whether such conduct was the sole proximate cause of his injuries’ ” … .  Nicometi v The Vineyards of Fredonia, Inc, 519, 4th Dept, 6-14-13

 

“Safety Consultant” Liable for Failure to Maintain Safe Work Site

In upholding a jury verdict, the Third Department determined there was sufficient evidence to support the jury’s finding that a safety consultant was liable under Labor Law 241 (6) for failing to maintain a safe work site:

Labor Law § 241 (6) “‘requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor'”…. Although a safety consultant generally is not liable to an injured worker under the Labor Law…,it is not the title that is dispositive, but whether such defendant had sufficient supervision and control over the activity that resulted in the injury….  We have previously stated that “[s]ubcontractors may be liable as agents under Labor Law § 241(6) when they have been specifically contractually delegated the duty or obligation to correct unsafe conditions or maintain work site safety”… .

The contract …set forth that a representative of defendant would be at the work site daily, make inspections, conduct safety meetings and have authority to require “immediate corrective action for imminent danger situations.” Defendant’s representative was continuously at the site throughout the project, and he exercised his power on several occasions prior to the accident by stopping work and requiring defendant to take specific precautions or actions. He was present when the accident occurred.  Leszczynski v Town of Neversink, 514876, 3rd Dept, 6-13-13

 

Single-Family House Exemption to Labor Law Action Applied

In finding the homeowner’s exemption of Labor Law 240(1) and 240 applied to work on a single-family house in which the business owners lived and from which the defendant business derived no income, the Second Department wrote:

Labor Law §§ 240(1) and 241, which impose certain nondelegable safety duties upon “contractors[,] owners and their agents,” specifically exempt “owners of one and two-family dwellings who contract for but do not direct or control the work.” Here, Green Chimneys [defendant] demonstrated its prima facie entitlement to judgment as a matter of law with respect to, inter alia, its claim that it was entitled to the homeowner’s exemption of Labor Law §§ 240(1) and 241 by establishing that the Founder’s House was a single-family dwelling used solely as a residence for Green Chimneys’ founder and his wife, the house served no commercial or business use for Green Chimneys, which received no income from the house, and Green Chimneys did not direct or control the work being performed…. Parise v Green Chimneys Children’s Servs, Inc, 2014 NY Slip Op 03649, 2nd Dept, 5-22-13

 

 

No Action Where Plaintiff Struck by Small Piece of Sheetrock Dropped from Third Floor

Plaintiff was struck by a small piece of sheetrock a worker dropped from the third floor.  In affirming the dismissal of the Labor Law 240(1) cause of action, the Second Department wrote:

As the Court of Appeals has observed, not every injury caused by a falling object at a construction site is covered by the extraordinary protections of Labor Law § 240(1)…. Rather, in a “falling object” case under Labor Law § 240(1)…, 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”…. The statute does not apply in situations in which a hoisting or securing device of the type enumerated in the statute would not be necessary or expected…. Moncayo v Curtis Partition Corp, 2013 NY Slip Op 03644, 2nd Dept, 5-22-13

 

Fall from Unfolded Step Ladder Stated Claim​

In determining plaintiff’s use of a step ladder that was not unfolded did not warrant dismissal of the Labor Law 240(1) cause of action for a fall from the ladder, the First Department wrote:

Plaintiff established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim as against defendants …by his testimony that: (1) the ladder was the only one available; (2) the ladder could not be properly opened into an A-frame stance due to excess debris in his narrowly confined work space; (3) he asked his foreman for another ladder, to no avail; (4) the ladder was unusual in that the step treads contained spikes which unexpectedly caught hold of his shoe as he was descending the improperly leaning ladder; (5) he was caused to fall backwards, from a height of approximately six feet; and (6) his right shoulder was injured when it struck the wooden work-zone barrier as he fell.  Keenan v Simon Prop Group, Inc, 2013 NY Slip Op 03622, 1st Dept, 5-22-13

 

“Sole Proximate Cause” Defense Not Demonstrated

In reversing Supreme Court and granting plaintiff’s motion for summary judgment, the First Department determined the facts did not support the defense that plaintiff was the sole proximate cause of the accident. Plaintiff was injured when a drill rig fell after safety chains had been removed. The First Department determined the facts demonstrated plaintiff was not solely responsible for removing the safety chains and, therefore, the “sole proximate cause” defense was not available:

The sole proximate cause defense generally applies where the worker misused, removed, or failed to use an available safety device that would have prevented the accident, or knowingly chose to use an inadequate device despite the availability of an adequate device …. However, “the Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence” … .

Plaintiff did not unilaterally elect to remove the chains and chain binders. Clark, the dock builder foreman who had the discretion to make the determination in the field as to the manner in which the drill rig would be moved, determined that the drill rig could not be pivoted with the chain binders attached, a belief plaintiff shared … .  Boyd v Schiavone Constr Co, Inc, 2013 NY Slip Op 03578, 1st Dept, 5-16-13

 

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Criteria for Motion to Amend Pleadings/Motion for Additional Depositions

In this Labor Law action, the Second Department explained the factors to be considered in a motion to amend the pleadings, and the factors to be considered in a motion for additional depositions:

Applications for leave to amend pleadings should be freely granted except when the delay in seeking leave to amend would directly cause undue prejudice or surprise to the opposing party, or when the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b];…). The sufficiency or underlying merit of the proposed amendment is to be examined no further ….  * * *

The moving party that is seeking additional depositions has the burden of demonstrating “(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case” …. Whether the defendant had the authority to supervise the means and methods of the work is material and relevant to the issue of liability in this case …. Gomez v State of New York, 2013 NY Slip Op 03455, 2nd Dept, 5-15-13

 

 

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