From the Editor:
Situation giving you consternation, give us a call for verification, do it from anywhere in the nation, we will answer and even invite you for a libation.
Keep those calls and emails coming, it makes our day. I freely admit to being a lousy poet, but I actually do understand most labor law issues and love looking for answers to the rest.
Jennifer Ehman will not be answering any situational questions for the next few months, we congratulate Jennifer and her husband Mike on the birth of their daughter, Charlotte, all four of them, including big sister Ella, are doing great.
I have been asked several times in the past month how to access our prior analysis of cases; our website has a searchable catalogue of all the past issues. I have added the link here for your ease of access. http://www.hurwitzfine.com/listnews.php?type=labor.
Remember that our big sister publication, Coverage Pointers, is also available. Dan Kohane’s newsletter addresses all issues coverage related and much more, including baseball lore. It is well worth reading, not only informative but also very interesting. Anyone wishing to subscribe to Coverage Pointers can drop Dan an email at [email protected] to be added to the distribution list. The link for the Coverage Pointers, with its own catalogue of past issues is;
http://www.hurwitzfine.com/listnews.php?type=coverage.
I urge you to contact us if you have any interest in some labor law training, we do webinars or in person visits to carriers or other groups with sessions anywhere from an hour to 3 or 4 hours depending on how in depth you want the training to be. We cover all topics Labor Law related. We have this month done investigating the labor law case, the basics of the sole proximate cause defense and the elements of a labor law case for some of our claims partners and next month we will be doing more including risk transfer, contractual indemnification, common law indemnification and additional insured status. While the planned seminars are for specific groups we would do open sessions if there was interest. Let me know if there is a topic you would like to have us do a webinar covering, we are always happy to do it.
Some interesting cases for you in this month’s newsletter, including two from the Court of Appeals, but please, if you notice a sharp decrease in the quality of Jennifer Ehman’s analysis of the 241(6) cases do not mention it to her. She is out taking care of Charlotte so I did them for her and do not want her to think I lowered her high standards while covering her beat.
Hope you enjoy this month’s edition, I do have a picture for your review, please let me know if you think that if the plaintiff fell from the bucket that he would have a valid 240(1) claim. Answer in next month’s edition.
Thanks for your interest.
David
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
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Phone: 716.849.8900
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Fax: 716.855.0874
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H&F Website: www.hurwitzfine.com
Labor Law Pointers is published the first Wednesday of each month. If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.
Siguenza v Cemusa, Inc.
April 1 2015
Appellate Division, Second Department
Siguenza was climbing down from a truck after breaking up concrete in its bed was he fell and was injured. His employer was hired to excavate part of a sidewalk in Queens. The trial court denied Siguenza summary judgment on his Labor Law § 240(1) cause of action. At trial, the jury found in favor of defendants, finding no violation of the statute. The jury did find a violation of § 241(6) but determined said violation was not a proximate cause of the accident.
The Second Department held “the plaintiff cannot be regarded as a person employed” to perform an enumerated activity under the statute because, although his employer was engaged to erect a bus shelter, no work on that structure had yet begun. The court noted that Siguenza was not going to perform such work as his crew only worked on demolition and restoration of a sidewalk.
PRACTICE POINT: You need to look at the overall project to determine if the plaintiff is a person “so employed” in an enumerated project, not simply if the task being undertaken is one which exposed him to an elevation related risk. Here the plaintiff was not engaged is a project which qualified as his work was not part of the construction project.
The jury determined, based on the credibility of the witnesses, that the plaintiff had available an alternate means for descending from the truck and that thus a violation of 12 NYCRR 23-1.7(f) was not a proximate cause of the plaintiff’s injuries. Thus, in spite of a finding by the jury that the defendant violated that regulation, the existence of an alternative means of descending from the truck allowed the jury to find that the violation was not a proximate cause of the injury producing fall. On appeal the court can only overturn the decision of the jury when there is no fair interpretation of the evidence which would allow the jury to render its verdict, which did not exist here.
Nicometi v Vineyards of Fredonia, LLC
April 2, 2015
Court of Appeals
Nicometi was injured while installing insulation in the ceilings of a newly constructed apartment building owned by defendants. To complete his task, Nicometi wore stilts to reach the 9 to 10 foot high ceiling. He claimed that while swinging a hammer above his head, he stepped forward with one foot to affix insulation on the ceiling rafters and slipped on ice. He testified that he knew about the ice before he fell but that his supervisor directed him to work regardless. The supervisor, however, claimed that he, and not Nicometi, had first noticed the ice and told him not to insulate above the icy area.
Nicometi moved for summary judgment on his Labor Law § 240(1) claim and defendant cross-moved to dismiss that claim, contending the injuries were caused by “an ordinary construction site danger”; ice and not an elevation-related hazard. The trial court held the statute applied because the incident resulted from an elevation-related risk, and no question of fact existed on sole proximate cause despite the instruction not to insulate on the ceiling above the ice.
The Fourth Department’s majority and two-justice dissent agreed that the statute applied because the stilts elevating Nicometi “failed” as he worked and thus defendants’ motion was properly denied. However, the court was split on sole proximate cause issue and the dissent concluded that Nicometi was still entitled to summary judgment.
The Court of Appeals reversed based on Melber v 6333 Main St., 91 NY2d 759 (1998), where plaintiff was standing on stilts installing metal studs in the top of a drywall when he went to grab a tool. He “tripped over electrical conduit protruding from the unfinished floor and fell” while walking. The Court held “the protective equipment envisioned by the statute is simply not designed to avert the hazard plaintiff encountered here”; electrical conduit sticking out of the floor; and distinguished the same situation except for the fact that the stilts failed while plaintiff was installing the studs.
The issue here is whether the hazard on the stilts was a separate hazard “wholly unrelated to the hazard which brought about the need for a safety device in the first instance.” In Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914 (1999), plaintiff stepped off a ladder with one foot and tripped over a portable light, and the Court held the statute did not apply because the injury was caused by a “usual and ordinary danger” at the site “distinct and unrelated to the elevation-related risk that called for the ladder in the first instance.” In Cohen, the Court of Appeals held that a plaintiff who tripped over the pipes and fell while descending a ladder was not entitled to statutory protections.
Here, the Court held Nicometi’s incident was caused by a separate hazard – ice – unrelated to any elevation risk. The majority distinguished Striegel,where plaintiff fell because his foot slid down a roof 15-20 feet and the court held the hazard could have been avoided by the use of “toe boards” to provide a flat path for plaintiff to traverse.
Thus, the Court held Nicometi could not recover here because his injuries resulted from a slip on ice, which is a separate hazard unrelated to the elevation risk that necessitated the provision of a safety device in the first place. Chief Judge Lippman dissented, holding stilts placed on ice create the same “elevated-related risk” as to ladders and thus, the statute applies to Nicometi’s injuries.
PRACTICE POINT: This case allows us to explore a basic issue in labor law: was the injury brought on by the failure of absence of a safety device and was the risk which brought about the accident and injury the type that the statute was designed to protect against? Here, the risk that caused the fall and injury was the ice, a risk that had nothing to do with an elevation risk. In fact, the court stated that the stilts themselves did not have any defects and played no part in causing the fall in that the fall was caused solely by the ice.
The dissent by Judge Lippman misses the point, holding that if Nicometi had been on a ladder and the ladder placed on the ice it would have been a labor law case citing to Klein. My opinion is that he misses the point that the plaintiff in Klein was on a ladder he placed on a slippery substance and when the ladder slid out he fell. The instant case is different in that the stilts are not placed; they are simply a method of moving about the work site to work at a higher level and thus they are not “placed”. Remember that § 240(1) calls for the safety devices, and both ladders and stilts qualify, that they “shall be so constructed anywhere, placed and operated as to give proper protection to a person so employed” (emphasis added). Therefore, as the stilts are not placed, but are rather used to move about the site, the analogy to the ladder is not accurate.
Saint v Syracuse Supply Co.
April 2, 2015
Court of Appeals
Saint was part of a three-person crew working to replace an advertisement on a billboard 59 feet from the ground, and composed of a two-sided metal frame constructed in an inverted “V” shape set on a metal tube embedded in the ground. Each side of the frame is 14 X 48 feet in size, and covered by a series of panels secured to the frame by iron clips called “stingers.” The billboard has catwalks workers access by a ladder elevated several feet from ground and attached externally to the metal tube. All the catwalks have safety cables, but only the lower rear catwalks have a guardrail.
The new advertisement required attachment of additions to the frame, referred to as “extensions” and are plywood cutouts. During Saint’s work, he used and operated a crane to raise the extensions onto the billboard’s lower outer catwalk. Had the job gone smoothly, after the new advertisement was secure the crew would bolt the extensions’ angle irons to the stringers to hold them in place on the frame. However, Saint fell while attempting to move the panels on the lower rear catwalk when a “strong gust of wind” caused the panel to strike his chest, knocking him ten feet below after he detached his lanyard from the catwalk’s safety cable to get around a crew member.
The trial court denied defendant’s motion to dismiss Saint’s Labor Law §§ 240(1), 240(2) and 241(6) arguing that Saint was not engaged in a covered activity. Saint cross-moved for partial summary judgment on his §§ 240(1) and 241(6) claims. The trial court denied both motions finding both provisions applied to Saint’s claims, but an issue of fact existed as to whether he was the sole proximate cause of his injuries for failing to reconnect his lanyard.
The Fourth Department reversed and granted defendant’s motion, concluding that Saint’s work did not constitute altering the building or structure and was “more akin to cosmetic maintenance or decorative modification.” The court also found Saint was not engaged in “construction” work within the meaning of § 241(6).
Saint argued on appeal the statute applied because he physically altered the billboard by installing extensions that changed the physical shape of the structure. Defendant responded that at the time of his fall, Saint was not engaged in the installation or removal of extensions and regardless, the work was not an alteration by changing advertisements which is routine maintenance, and any alleged change to the structure was not permanent.
The Court held Saint was engaged in work constituting an alteration under the statute, relying on Joblon’s definition that “altering … requires making a significant physical change to the configuration or composition of the building or structure.” Here, Saint’s work involved attaching extensions that changed the dimensions of the billboards frame and transformed the shape to accommodate the advertisement’s artwork. The court held the removal of panels was a prerequisite to the attachment of the extensions and thus, Saint’s work entailed a significant change to the billboard structure and did not involve simple tasks involving minimal work.
The Court further held the installation was not a “decorative modification” because the work entailed far more than a mere “change to the outward appearance of the billboard” as it required a change to the billboard’s size and an adjustment of the frame to accommodate the unique shape of the advertisement. The Court distinguished Munoz v DJZ Realty, which held that an employee injured while working on a billboard was not involved in an “alteration” because the employee was applying pre-pasted sheets to a billboard and the court concluded the work merely “changed the outward appearance … but did not change the billboard’s structure.”
Here, Saint’s work required attachment of metal bolts and attachment of the extension to the frame. The court thus found that based on the nature of Saint’s work and that the attachment of extensions to the billboard affected a significant change to the structure, Saint’s work was “altering” within the meaning of the statute.
The Court also held it was error to dismiss the Labor Law § 240(2), requiring that “[s]caffolding or staging more than twenty feet from the ground or floor … shall have a safety rail of suitable material properly attached, bolted, braced or otherwise secured …” Here, it was undisputed the billboard platform was 59 feet high and there was no safety railing around the subject catwalk.
PRACTICE POINT: The point the Court of Appeals was careful to make is they are not modifying the status of the law with regard to the changing of the billboard sign, but in a situation such as this where the structure of the sign is changed, a significant change to the structure to use the Joblon language yet again and that is simply more than a cosmetic change.
Labor Law § 241(6) (JAE)
The Court also held that Saint was engaged in “construction work” under the statute, which is defined to include alteration of a structure under 12 NYCRR § 23-1.4(b)(13). Here, Saint was altering the billboard by installing the extension at the time of his injury and therefore, his claim falls within the ambit of § 241(6). The Court distinguished Hatfieldbecause Saint was altering the billboard’s dimensions in order to apply the advertisement rather than performing “maintenance of a building or structure outside of the construction context.” Thus, the Court denied defendant’s motion to dismiss this claim.
Guanopatin v Flushing Acquisition Holdings, LLC
April 8, 2015
Appellate Division, Second Department
Plaintiff was leveling pre-cast concrete planks weighing one ton and sustained injury when one fell from a jack being used to raise the plank onto one of his hands. The trial court granted plaintiff summary judgment on his Labor Law § 240(1).
The Second Department affirmed judgment in favor of plaintiff because he demonstrated he was engaged in a protected activity as his work was part of the construction of a seven-story building. In opposition, defendants submitted the written statement of plaintiff’s employer indicating that plaintiff failed to follow the instruction of his foreman to stop working and instead continued to raise the jack to its maximum level.
The court rejected the written statement as it unsworn and not in admissible form, and although plaintiff’s employer’s deposition contained similar statements, those statements were hearsay as he merely stated what he learned from interviewing plaintiff’s foreman, who did not witness the accident.
PRACTICE POINT: The importance of having the proof submitted for a Summary Judgment motion cannot be over emphasized. Here a case which would have been a question of fact seemingly if the statement had been sworn was a partial Summary Judgment victory for the plaintiff simply due to the admissibility of the proof. The two most common mistakes made in preparing Summary Judgment motions are first not realizing who has the burden and second not having your evidence in admissible form. This is a lesson many of us, myself included, have learned the hard way. It can be difficult to explain to a young associate that simply establishing that the plaintiff can’t prove her case is not the same as proving your own case, and the results are not usually good.
Guaman v 1963 Ryer Realty Corp.
April 9, 2015
Appellate Division, First Department
Guaman fell when his two coworkers simultaneously loosened the ropes keeping the scaffold he was standing on level, causing the scaffold to shift from a horizontal to a vertical position. The trial court granted Guaman summary judgment on his Labor Law § 240(1) claim.
The trial court also granted the Ryer defendants summary judgment on its common-law indemnification claim against AP, Ryer’s cross-motion for common-law indemnification against Saad, denied Saad’s similar cross-motion against AP, and denied AP’s cross-motion to dismiss the cross-claims against it.
The First Department affirmed summary judgment for Guaman as he established the scaffold he was working on shifted and he fell, and his accident was also caused by the lack of a guardrail on the side of the scaffold. In opposition, defendants argued sole proximate cause but failed to submit any admissible evidence to support their claim that Guaman failed to attach his safety harness to the lifeline in the proper way. Regardless, the court held the scaffold fell as a result of the ropes supporting its being loosened.
PRACTICE POINT: It is a losing proposition in most instances to argue that while one safety device did in fact fail to protect the plaintiff from an elevation related risk had the plaintiff properly used a second required safety device he would not have been injured. The argument that the plaintiff’s failure to properly utilize the second device was the sole proximate cause of the injury has resulted in my being asked, by a smiling judge, the question “David, do you understand the meaning of the word “sole””. There can only be, by definition one cause for it to be the “sole” cause.
Indemnity Issues in Labor Law (SEP)
Both Saad and Ryer argued that AP was plaintiff’s employer at the time of the accident. This argument was adopted by the Court where, as here, the Workers’ Compensation Board had previously issued a ruling that AP was, in fact, plaintiff’s employer. Where AP had a full and fair opportunity to oppose the employment status, it was barred from re-litigating the issue in the bodily injury action. Likewise, where the Board determined that plaintiff was not acting as a special employee of Saad at the time of the accident, it followed that AP was also barred from re-litigating that issue.
Where Saad and Ryer established active negligence against AP, and established that neither supervised, directed or controlled plaintiff’s work, it followed that a common law indemnity award was appropriate. We presume that plaintiff sustained a grave injury, thereby avoiding the exclusivity provisions of Section 11.
Amante v Pavarini McGovern, Inc.
April 14, 2015
Appellate Division, First Department
Amante arrived early for work and had to cross the job site by entering through an open gate when he fell into an excavation pit. The trial court granted Amante summary judgment on his Labor Law § 240(1) against Pavarini and AB Green, and denied their motions for common-law and contractual indemnification against Interstate Industrial and their third-party contractual indemnification and breach of contract for failure to procure insurance claims against Scalamandre. The trial court also denied Scalamandre’s motion to dismiss the contractual indemnification claim.
The First Department affirmed summary judgment for Amante as the excavation pit he fell in
was an elevation-related hazard covered by the statute because there was no proof that he was aware of a warning against walking through the excavation area or that he unreasonably disregarded any such warning and the area he was required to walk through was the only entrance.
PRACTICE POINT: To prove a sole proximate cause defense in this type of case it is necessary for the defendant to prove that the plaintiff had a different method or route available to him and that he knew that the area where the injury occurred was an area he was not permitted to be in. Here neither of these elements was present. These cases are often seen with areas of a roof where a plaintiff has been instructed not to go and he goes to that area and falls sustaining injury.
Indemnity Issues in Labor Law (SEP)
At the time of plaintiff’s motion, Pavarini/AB Green also moved for common law indemnification against a contractor at the jobsite, Interstate. However, where it could not be established that Interstate excavated the pit the Court held that Pavarini/AB Green’s motion should be denied. In addition, the Court also found question of fact relative to Pavarini/AB Green’s potential negligence in failing to adequately illuminate the premises and/or control access to the site.
Notwithstanding its opinion on Pavarini/AB Green’s own potential share of fault, the Court did grant their motion for contractual indemnity against another contractor, Scalamandre. Apparently, the clause was broad enough to encompass the loss (although the Court did not reference its wording). Pavarini/AB Green also established a breach of contract claim against Scalamandre for failing to provide the appropriate amount of coverage. The Court advises that the trade contract required $5,000,000 in coverage, and Scalamandre procured far less.
Purcell v Visting Nurses Found, Inc.
April 21, 2015
Appellate Division, First Department
Purcell was assigned to stand on the third step of a ladder in a building’s basement and gently pull one end of an eight or ten-foot long piece of steel (“channel”) positioned 11 feet high and had been mostly cut loose form the first floor framing. At that moment, an unsecured wall adjacent to the structural wall of the first floor, which had been resting on the channel and a concrete slab, collapsed and knocked Purcell and his ladder onto the floor.
Purcell’s foreman inferred from Prucell’s movement of the channel caused the unsecured concrete slab to roll out from underneath the unsecured wall, causing it to fall. The trial court granted defendant Cauldwell’s motion to dismiss the Labor Law § 240(1) based on a “falling object” theory and denied Purcell’s cross-motion for summary judgment on that same claim. The trial court also denied third-party defendant NEF’s motion to dismiss the common-law indemnification and contribution claims against it.
The First Department reversed, holding that because Purcell’s foreman testified Purcell had leaned the A-frame ladder against a wall in the closed position to enable Purcell to reach the channel, the ladder was not “so … placed … as to give proper protection to” Purcell, was this a violation of 240(1) and thus nothing else could be the sole proximate cause. The court further held Purcell established his injuries were also caused by the lack of any safety devices to secure the unsecured wall.
In opposition, the court held defendants failed to raise an issue of fact whether safety devices were provided or whether the lack or failure of safety devices proximately caused his injuries in light of the foreman’s opinion that the concrete slab should have been connected to the wall by installing rebar into the rebar and pouring concrete over it.
The court further distinguished Misseritti v Mark IV Constr. Co., 86 NY2d 487 (1995) in which the decedent was sweeping the floor when he was fatally struck by a completed wall. Here, Prucell’s work raised an extraordinary, elevation-related risk beyond that which workers are routinely exposed to on construction sites.
PRACTICE POINT: This case is the double whammy, falling object (the wall) plus falling plaintiff due to an improperly placed ladder. No surprise at the outcome of this one.
Indemnity Issues in Labor Law (SEP)
The Appellate Division held that the Trial Court erred in not dismissing the common law indemnity claims against NEF. NEF’s motion to dismiss was opposed on plaintiff’s medical records which detailed post-concussion syndrome and headaches. However, the Court aptly noted that for a head injury to qualify as “grave” under the exclusivity protections of Section 11 of the Workers’ Compensation Law the claimant needed to establish the injured party was “no longer employable in any capacity." Here, that wasn’t the case, and the motion for summary judgment should have been granted accordingly.
Seferovic v Atlantic Real Estate Holdings, LLC
April 22, 2015
Appellate Division, Second Department
Seferovic allegedly was injured when the foot of an unsecured A-frame ladder twisted out from under him while he was lifting materials from one level of the roof to another. He was not holding onto the ladder when he fell but rather was carrying materials in one hand and had his other hand on a wall. The building was owned by Atlantic and leased by Sigma. The trial court denied Seferovic summary judgment on his Labor Law § 240(1) claim and denied defendants’ cross-motion to dismiss the Complaint.
The Second Department held Seferovic established prima facie entitlement to summary judgment by submitting evidence that the ladder was unsecured and twisted out from under him for no apparent reason, causing him to fall. The court rejected defendants’ sole proximate cause argument, and held Sigma failed to raise an issue of fact as to whether it was an owner or agent under the statute as its President hired Seferovic to perform the work and controlled his work.
PRACTICE POINT: Where the ladder shift and the plaintiff falls the courts have held for many years that the ladder was not properly placed, thus the statute was violated and the actions of the plaintiff could not therefore be the sole proximate cause of the accident. The defendant was indeed an agent of the owner because they were the lessee of the property, they hired the plaintiff and controlled his work, thus the defendant had the right to insist that proper safety practices were followed.
Plaintiff’s Summary Judgment motion was denied as the plaintiff failed to establish a prima facie cases based on 12 NYCRR 23-1.21(b)(1) or (3) pertaining to ladders and the strength requirements (four times the intended load without breaking, dislodging or loosening of any component) and maintenance. As the ladder shifted and did not break or in any other way fail as described in the code, the court did not grant plaintiff Summary Judgment on the 241(6) claim.
Labor Law § 200 and Common-Law Negligence (VCP)
As to the causes of action alleging a violation of Labor Law § 200 and common-law negligence, Sigma failed to establish, prima facie, that it lacked the authority to supervise or control the performance of the work, which it was obligated to do since the accident arose from the means and methods of the injured plaintiff's work. Accordingly, Sigma's motion was properly denied without regard to the sufficiency of the Seferovic's papers submitted in opposition.
Ramade v C.B. Contr. Corp.
April 23, 2015
Appellate Division, First Department
Ramade tripped and fell on a piece of rebar sticking out from an unfinished concrete floor. Her employer, Welsbach was hired by the DEP to perform electrical work. SEW was hired by DEP to furnish labor and material, and subcontracted with Welsbach and C.B. Contracting for installing the rebar. The trial court granted SEW summary judgment dismissing the Labor Law § 200 and common-law negligence claims as well as the § 241(6) predicated on § 23-1.7(e)(2).
SEW failed to establish prima facie that it cannot be held liable for plaintiff's injuries under Labor Law § 241(6), predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-1.7(e)(2). SEW failed to demonstrate that it was not a general contractor that owed a nondelegable duty to provide reasonable and adequate protection and safety to persons employed at the work site, as opposed to a mere prime contractor. Nor did it demonstrate that it was not a statutory agent, having been given the authority to supervise and control the work giving rise to plaintiff's.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department reversed, finding that SEW failed to make a prima facie demonstration that it did not have the authority to control and direct the injury-producing rebar installation work. While SEW submitted portions of the prime contract between SEW and DEP, those portions do not set forth the complete obligations under that contract. Further, SEW did not produce the contract between it and C.B. Contracting, which purportedly details its obligations toward the rebar installation work. As such, issues of fact exist whether SEW had the requisite authority to control and direct the method and manner of C.B. Contracting's rebar installation work. Issues of fact also exist as to SEW's responsibility to cap the subject piece of rebar.
Singh v 1221 Ave. Holdings, LLC
April 23, 2015
Appellate Division, First Department
Singh allegedly was injured when he tripped over a screw protruding about one inch above the floor tile on a renovation project. The trial court granted defendants 1221 Ave., Morgan Stanley and L&K Partners’ motions to dismiss the common-law negligence and Labor Law § 200 claims but denied the same motion as to RCF. The trial court also dismissed Singh’s § 241(6) claim predicated on Industrial Code (12 NYCRR) regulations § 23-1.7(e)(1) and (2) against all defendants.
Plaintiff's Labor Law § 241(6) claim predicated upon an alleged violation of 12 NYCRR 23-1.7(e)(2) was properly dismissed since the screw over which plaintiff tripped was an integral part of the raised tile floor system and other work performed on the renovation project. Although the court properly found that plaintiff raised a triable issue as to whether his accident occurred in a "passageway" or an open area, it erred in dismissing the section 23-1.7(e)(1) claim on the ground that the screw constituted an integral part of the work being performed. Dismissal on such ground is warranted only to claims under section 23-1.7(e)(2).
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department held that the trial court properly dismissed Singh’s Labor Law § 200 and common-law negligence claims as against Morgan Stanley, 1221 Avenue Holdings, and L & K Partners. Contrary to Singh’s contention, the screw, which protruded about one inch above the floor tile, was not the result of an inherently dangerous condition at the work site, but rather, was due to the means and methods of the contracted work. Thus, the determination to be made is whether the defendants exercised supervision and control over Singh’s work and here, there was a lack of evidence that these defendants exercised such supervision and control. Regular inspection of the site to ensure that work is progressing according to schedule or the authority to stop any work perceived to be unsafe constitutes a general level of supervision that is not sufficient to warrant holding defendants liable under this statute.
Dismissal of the Labor Law § 200 and common-law negligence claims as against RCF was also warranted since there was no evidence that this defendant supervised, directed or controlled the work Singh was performing at the time of the accident. It is unknown which subcontractor failed to properly screw the floor tile down, and there was no evidence that RCF was responsible for ensuring that tiles were properly screwed down after they had been opened by another subcontractor performing electrical or plumbing work.
Torres v City of New York
April 29, 2015
Appellate Division, Second Department
Torres was employed by an excavation crew, Northeast, working ten feet below grade level within a steel trench box providing hand signals to direct an excavator in maneuvering its bucket. As he was signaling the operator of the excavator, his right hand was crushed against the inside of the steel trench box by the bucket of the excavator.
The trial court denied Torres’s motion for summary judgment on his Labor Law § 241(6) claim, and granted the City Defendants and, summary judgment dismissing the Complaint alleging common-law negligence and violations of Labor Law §§ 240(1), 241(6) and 200. Caterpillar, the excavator manufacturer, was granted summary judgment on the basis that the alleged failure to warn was not a proximate cause of the accident.
The Second Department held that this case did not involve a gravity- or elevation-related hazard, and thus the City Defendants established they were not liability under this statute.
PRACTICE POINT:
This one is very clear, the plaintiff did not fall, nothing fell on the plaintiff, there was no injury caused by the effects of gravity on any object in any way, it is simply not a 240(1) case.
Labor Law § 241(6) imposes a non-delegable duty on owners, contractors, and their agents to provide a safe workplace to workers, and applies to all areas in which construction, excavation or demolition work is being performed. Defendants contend that, since the injured plaintiff was a member of the "excavating crew," as defined in 12 NYCRR 23-9.5(c), he was authorized to be within range of the moving excavator bucket and they submitted an expert's affidavit in support of that contention. However, a person authorized pursuant to 12 NYCRR 23-9.5 to operate or be within the range of an excavator's bucket may still claim the protections provided by 12 NYCRR 23-4.2(k). Plaintiffs’ expert's affidavit raised a triable issue of fact as to whether the City defendants violated 12 NYCRR 23-4.2(k). Summary Judgment was awarded to neither party as the conflicting expert opinions created a question of fact in all directions.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed the dismissal the Labor Law § 200 and common-law negligence causes of action against the City defendants. As this case involved injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work for liability to attach. Here, the City defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not have the authority to control, direct, or supervise the method or manner in which the work was performed. In opposition, Torres failed to raise a triable issue of fact.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
12 NYCRR § 23-1.7(c) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Drowning hazards.
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§ 23-1.7(b)(1), requires that manned boat, equipped as prescribed, continuously patrol area beneath work location at all times when any person is exposed to drowning hazard and further requires that each boat must be available for prompt rescue where workers are exposed to hazard of falling into water beneath work location, and |
Collado v New York, 72 AD3d 458, 900 NYS2d 10 (1st Dept 2010). |
Collado held issues of fact existed whether reg applied where there was continuously patrolling boat at accident and whether absence of such a boat was a factor in the drowning death of a dock builder who lost his footing and fell from a fender system at the basis of the Third Ave Bridge into river 10 feet below, precluding summary judgment for defendants.
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12 NYCRR § 23-1.7(d) – Protection from general hazards – Slipping hazards. |
§ 23-1.7(d) provides that “employers shall not suffer or permit any employees to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition”, and is sufficiently specific. |
Zachara v Occidental Chemical Corp., 144 AD2d 926, 534 NYS2d 32 (4th Dept 1988); Hammond v International Paper Co., 178 AD2d 798, 577 NYS2d 526 (3d Dept 1991); Stairs v State Street Associates, L.P., 206 AD2d 817, 615 NYS2d 478 (3d Dept 1994); Durfee v Eastman Kodak Co., 212 AD2d 971, 624 NYS2d 704 (4th Dept 1995); McGrath v Lake Tree Village Associates, 216 AD2d 877, 629 NYS2d 358 (4th Dept 1995); Colucci v Equitable Life Assur. Soc. of U.S., 218 AD2d 513, 630 NYS2d 515 (1st Dept 1995); McCague v Walsh Const., 225 AD2d 530, 638 NYS2d 752 (2d Dept 1996);
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The evidence in Zachara did not support the jury’s verdict that defendant not negligent in failing to provide a safe work place as π had to work on a 3-4 inch layer of grease which caused him to fall. |
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