Take Labor Law § 200 Seriously… Seriously

By Eric S. Bernhardt, Esq. 

If you’re reading this article, you’ve probably heard of Labor Law § 240(1); New York’s infamous “Scaffold Law.”  The only-one-of-its-kind, draconian, hasn’t-been-another-like-it-since-1997 (when Illinois repealed its version of this statute), law that was originally intended to protect construction workers from unsafe worksite conditions, but now serves mostly to relieve them of any responsibility for their own conduct in causing accidents and to drive up insurance costs.  (Yes, I know, I make my living on Labor Law cases.  But, facts is facts).  Many are also familiar with the Industrial Code, the 50+-year-old set of regulations for conduct on construction sites that form the basis for claims under Labor Law § 241(6). 

However, not a lot of attention is paid to their little brother, Labor Law § 200.  § 200 isn’t flashy, it doesn’t rely on an archaic set of regulations that hasn’t been updated in my lifetime, it’s simple and straightforward, yet it repeatedly trips up attorneys who aren’t paying it the respect it deserves.  Labor Law § 200 matters, and in this article, we will tell you why it matters and what you need to consider when defending a claim under this statute.

The Basics

Labor Law § 200 “is a codification of the common-law duty imposed upon an owner or general contractor to provide construction workers with a safe place to work.”[1]  While § 200 does not define the class of defendants to which it applies, the courts have applied it to owners and to contractors who have the power to direct and control the plaintiff’s work.[2]  Because this section is a codification of a common-law duty of care, in construction accident cases, it is usually analyzed in conjunction with the plaintiff’s negligence claims.

Claims for personal injury under § 200 (and the common law) generally fall into two broad categories: those cases arising from an alleged defect or dangerous condition existing on the premises; and those arising from the manner in which the work was performed.[3]  This latter category goes by several names, derived from the same theme: “Means and Methods,” “Manner and Method,” “Manner and Means.” 

To impose liability under § 200 where a plaintiff’s accident allegedly arose out of the manner and method of the work, the owner or general contractor must “have the authority to control the activity bringing about the injury” and must exercise that authority.[4]  General supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work is insufficient to impose liability for common-law negligence under Labor Law § 200.[5] 

By contrast, where an injury arises from an allegedly dangerous condition on the premises, whether the owner (or contractor) supervised or controlled plaintiff’s work is irrelevant to liability.  Instead, a defendant may bear responsibility if it created the dangerous condition causing an injury, or if it had actual or constructive notice of an allegedly dangerous condition on the premises and failed to remedy that condition, which condition then caused plaintiff’s injuries.[6] 

It’s Only § 200, Why Do We Care?

Properly defending claims under Labor Law § 200 and common-law negligence are often more important that defeating a claim under §§ 240(1) and 241(6).  As you know from our previous articles, here and here, one cannot be indemnified for their own negligence in construction cases.  Accordingly, demonstrating the absence of any negligence on the part of your client/insured is often the first step in obtaining common-law or contractual indemnification from other parties involved in the case, and transferring the risk exposure to those parties (and/or their insurance carriers).

Things to Consider When Defending the Labor Law § 200/Common-Law Negligence Claim

Although every case is different, there are certain things to consider when defending any § 200 claim:

  • You must ALWAYS consider both categories of § 200 claims.  Read the complaint, read the bill of particulars or responses to interrogatories (you ARE serving interrogatories in Labor Law cases, right?), but don’t rely solely on what the pleadings say.  Look at the facts and conduct discovery to defend against both categories.  It is not uncommon for a Court to decide that a dangerous condition case is really a “means and methods” claim or vice versa.  For an example, see Gaston v. Trustees of Columbia Univ. in the City of New York.[7]  See also, Giglio v. Turner Constr. Co.[8]
  • ​Sometimes a “dangerous condition” claim actually is a “means and methods” claim.  Where the alleged defect is not inherent in the premises, but is created from the manner in which the work was performed, no liability can be imposed on the defendant, unless they supervised or controlled the work.[9] 
  • Sometimes a means and methods claim actually is a “dangerous condition” claim.  Where the plaintiff’s use of a piece of defective equipment on site relates to the means and methods of the work, the presence and availability of that defective equipment on site is a dangerous condition that the owner and/or general contractor may have authority to remedy.[10]
  • To be liable in a “means and methods” claim, the defendant must have exercised direction or control.  Settled law absolves owners [and general contractors] from liability under Labor Law § 200 and common-law negligence when they do not exercise any supervisory control over the manner of the work.[11]  It is not enough to have the authority, you need to use it (Caveat: in the Second Department, having the authority can be enough.[12]).
  • The Single-Family Homeowner Exemption to liability on other Labor Law claims (under §§ 240(1) and 241(6)) can only be applied to “means and methods” claims.  Remember that Owners of one- or two-family dwellings are exempt from liability . . . unless they directed or controlled the work being performed.[13]  So, if a defendant can demonstrate it did not direct or control the work for purposes of this exemption to liability under §§ 240(1) and 241(6), that exemption also will apply to a § 200 claim based on direction or control of the work, i.e., “means and methods.”  However, because “dangerous condition” claims do not require any such direction or control, the exemption does nothing to protect a defendant from those claims.
  • With regard to “dangerous condition” claims, a defendant is not obligated to protect workers against a condition that may be readily observed by the reasonable use of the senses, having in view the age, intelligence, and experience of the plaintiff.[14]  Remember, Plaintiff’s comparative fault will be considered on § 200/common-law negligence claims.  Additionally, where the hazardous condition is part of or inherent in the work being performed, no liability may attach.[15] 
  • When moving for summary judgment, you MUST address both categories.  Our Labor Law Pointers newsletters are filled with cases where summary judgment was denied because the defendants failed to address BOTH categories.  For just one example, see Cantalupo v. Arco Plumbing and Heating, Inc.[16]

While no two Labor Law § 200 cases are exactly the same, if you keep these things in mind, you will help give yourself the best chance at defending the claim.  As always, the Labor Law team at Hurwitz & Fine, P.C. is here to answer any questions you have about any situation Labor Law- or Risk Transfer-related.  Give us a call, send us an email, and don’t hesitate to reach out.  We love to help.

[1] Comes v. New York State Electric and Gas Corporation, 82 N.Y.2d 876, 877 (1993); Russin v Picciano & Son, 54 N.Y.2d 311 (1981).

[2] Mergenhagen v. Dish Network Service L.L.C., 64 A.D.3d 1170 (4th Dep’t 2009).

[3] Prevost v. One City Block LLC, 155 A.D.3d 531 (1st Dep’t 2017).

[4] Comes, 82 N.Y.2d at 877.

[5] Farnsworth v Brookside Const. Co., Inc., 31 A.D.3d 1149 (4th Dep’t 2006).

[6] Burns v Lecesse, 130 A.D.3d 1429 (4th Dep’t 2015); Mendoza v. Highpoint Assoc., IX, LLC, 83 A.D.3d 1 (1st Dep’t 2011); Konopczynski v ADF Const. Corp., 60 A.D.3d 1313 (4th Dep’t 2009).

[7] 190 A.D.3d 551 (1st Dep’t 2021) (the First Department, searching the record, dismissed plaintiff’s Labor Law § 200 and common-law negligence claims. It held this was a “means and methods” case, and not a “defective condition”).

[8] 190 A.D.3d 829 (2d Dep’t 2021) (The Second Department determined this was a “means and methods” case, as the accident arose directly from the manner in which the work was performed, which generated both the water from the use of the wet saw, as well as the discarded plastic sheet from the tiles’ packaging. Defendants did not exercise supervision or control over the performance of the work.  So, summary judgment should have been granted).

[9] Villanueva v. 114 Fifth Avenue Associates LLC, 162 A.D.3d 404, (1st Dep’t 2018) (plaintiff was not injured by an inherently dangerous condition when he dropped a 500-pound, steel I-beam on himself, while trying to maneuver it through a narrow elevator hatch, because the elevator could not lift the beam; the elevator was reasonably safe and the injury arose from the means and methods of the work); Dalanna v. City of New York, 308 A.D.2d 400 (1st Dep’t 2003) (protruding bolt over which plaintiff tripped was to have been cut down by plaintiff’s employer, but was overlooked.  Consequently, protruding bolt was created by work and not inherent in the premises).

[10] Herrero v. 2146 Nostrand Ave. Assoc., LLC, 193 A.D.3d 421 (1st Dep’t 2021) (question of fact existed regarding GC’s notice of a defective scaffold on site.  Although subcontractors were responsible for inspecting their own scaffolds, GC performed visual inspections to make sure the equipment appeared safe. In addition, it’s superintendent was onsite daily, performed daily walkthroughs to look for safety hazards, and had the authority to remove any unsafe equipment from the floor.  Moreover, the superintendent testified that the defect in the scaffold was discoverable upon visual inspection).

[11] Dennis v. Cerrone, 192 A.D.3d 1572 (4th Dep’t 2021); Pelonero v. Sturm Roofing, LLC, 175 A.D.3d 1062 (4th Dep’t 2019); Mooney v. BP/CG Center II, LLC, 179 A.D.3d 490 (1st Dep’t 2020); Lopez v. Dagan, 98 A.D.3d 436 (1st Dep’t 2012)

[12] Moscati v. Consolidated Edison Co. of N.Y., Inc., 168 A.D.3d 717 (2d Dep’t 2019)

[13] Salgado v. Rubin, 183 A.D.3d 617 (2d Dep’t 2020).

[14] Musillo v Marist College, 306 A.D.2d 782 (3d Dep’t 2003); see also Cruz v. Metropolitan Transit Authority, 193 A.D.3d 639 (1st Dep’t 2021).

[15] See Cruz, supra.

[16] 194 A.D.3d 686 (2d Dep’t 2021) (plaintiff alleged that his injuries were caused by a dangerous condition on the premises, as well as by the means and methods of the work being performed and the equipment used, including the failure to use a chain fall to move the division plate. The Court found that while Chase demonstrated that it did not control the means and methods of the work, it failed to demonstrate that it neither created the alleged dangerous condition nor had actual or constructive notice of it.  It failed to offer any evidence that it was not responsible for the removal of the chain fall, that it inspected the area, or that the dangerous condition was latent and not discoverable upon a reasonable inspection).

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