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Volume XI, No. 12
Wednesday, November 2, 2022
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 Note from David R. Adams:
Do you have a situation? We love situations. Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and risk transfer issues.
My note for this month’s edition will be a bit shorter than usual, as I am in the third week of a trial. But, like the US Postal Service, neither snow, nor rain, nor heat, nor gloom of night (nor trial for that matter) stays these Labor Law attorneys from the swift completion of their appointed newsletter duties. I did learn that this is not an official motto of the Postal Service, but was engraved on the New York Post Office by the architect.
We have some interesting cases this month: the analysis in Moore v URS Corp. highlights an often-misunderstood argument and the difference between the authority to supervise the injury producing work, and actually supervising the work. To be an agent of an owner or contractor, a sub need only have the authority to supervise, direct, or control the injury producing work, while to be liable under § 200, the defendant must actually supervise, control, or direct the work. A distinction that can make a world of difference.
On to our photos for the month. In the first offering, the soon-to-be plaintiff was hired by the owner of the building, a mixed-use building, with retail on the first floor, to repair the leaking roof. When he was putting the top row of shingles on the roof, he found he could not reach high enough to nail it into place from the pick atop the ladders. His search for a taller ladder came up empty, so he decided to put his step ladder on the pick but, to do so, he needed to use it in the closed position, as there was not sufficient room for it to be opened. Shockingly, he fell from his precarious perch. § 240(1)?
Plaintiff clearly has a prima facie case: he is a person so employed; the building is commercial in nature, so the owner is a valid defendant; the project is for repair; and the injury was caused by gravity and an elevation differential. The defendant argues a sole proximate cause defense given that the plaintiff was always instructed to use an A-Frame ladder only when fully open and locked. The 5 elements of that defense are: 1) that the plaintiff must be provided an appropriate safety device; which must 2) be available for his use; and which 3) the plaintiff must have been instructed to use or knew he was expected to use; which the plaintiff 4) misused or failed to use; and the failure to use or misuse must be 5) for no good reason. Here, the sole proximate cause defense fails for multiple reasons. First, and easiest, is that the plaintiff simply was not provided an appropriate safety device to reach the required height and was not provided any fall protection. Beyond that, the inability to open the ladder was for good cause, as there was not sufficient room. Additionally, given the multiple issues with this set up, none could be the sole proximate cause of the fall and resulting injuries. Thus, summary judgment for the plaintiff.
In our second photo, we have an individual who has rented an apartment in the shown building and who has decided that he waited long enough for the power company to turn on his electricity and is taking matters into his own hands. Unfortunately, and quite surprisingly, despite his decision to use a wooden ladder to avoid electrocution, he miscalculated the ladder’s placement and, when the wire swung away from the building, the foot of the ladder (if we can call it that when used horizontally) slips over the edge and the plaintiff was injured in a fall. § 240(1)?
Ok, this is proof that I will make up a story for any picture if it is crazy enough. There is no Labor Law liability here, as the plaintiff was not a person so employed and is, thus, not entitled to the extraordinary protections afforded by the Labor Law. Summary judgment for the defendant.
In our final picture of the month, we have a worker freeing the tail section control surface of an airplane as it was not usable in its current state, due to the accumulation of ice. We should point out that the plaintiff is not employed by the plane owner and, thus, section 11 of the Workers’ Comp Law does not apply. When he falls, due to the very interesting ladder set up his employer instructed him to use, does he have a § 240(1) claim?
First off, let’s discuss the fact that he is working on a plane. A plane is composed of component parts and is, therefore, a “structure” for purposes of the statute. The next question is whether he is engaged in repair of the plane, or maintenance. As those of us in Buffalo (home of the first place Bills, I feel obligated to point out) know, planes routinely need to be de-iced prior to takeoff. Thus, the activity, in spite of being carried out in such a unique and unsafe manner, is maintenance. No § 240(1). Summary judgment for the defendant.
Have a great month everyone, and GO BILLS. Sorry for our many readers in the New York City area, but your NJ-based football team is going to have a rough Sunday this week.
Please feel free to reach out to us with any questions Labor Law or Risk-Transfer related.
David
David R. Adams
Hurwitz Fine P.C.
The Liberty Building
424 Main Street, Suite 1300
Buffalo, New York 14202
Phone: 716.849.8900
Fax: 716.855.0874
Email: [email protected]
HF 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.
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October 6, 2022
Appellate Division, First Department
Plaintiff, while carrying a tank on his shoulder, allegedly slipped and fell into an “excavation pit”, which was no more than a big hole in the ground with an unfinished muddy bottom. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 241(6) claim and denied defendants' cross-motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6), and 200 claims as well as their third-party contractual indemnification claim against Sky Materials.
 Labor Law § 240(1) (MAS)
The First Department reversed the trial court and granted summary judgment to defendant dismissing the Labor Law § 240(1) claim because there was no elevation-related risk involved with his carrying a tank on his shoulder as he walked along the ground.
PRACTICE POINT: Labor Law § 240(1) is inapplicable in cases such as this because plaintiff’s injuries were not “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).
 Labor Law § 241(6) (TPW)
The First Department unanimously reversed the trial court and granted defendants' cross-motion dismissing plaintiff's Labor Law § 241(6) claim. The Court found plaintiff was not entitled to relief under the alleged violation of Industrial Code § 23-1.7(d) since the "excavation pit" where he slipped and fell, “... was not the type of flooring or passageway contemplated by” the Industrial Code. Plaintiff’s argument that the accident did not occur on a floor, platform, passageway or similar work area or surface within the purview of § 23-1.7(d)], but rather on muddy ground in an open area exposed to the elements was deemed unpersuasive given the absence of testimony that plaintiff was walking along a walkway or path that “workers generally took”. The remaining Industrial Code provisions raised by plaintiff either provided only general safety standards or were inapplicable to the underlying facts.
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held summary judgment properly was denied to defendants on the Labor Law § 200 and common-law negligence claims as the evidence showed that Sky Materials, plaintiff's employer, performed no work the day before the accident, due to heavy rain. However, defendant's project manager testified that Sky's water removal operations on the day of the accident could have been due to the rain the previous day. Therefore, the Court found triable issues of fact as to whether defendants had constructive notice of a dangerous condition of the premises prior to plaintiff's accident.
 Indemnity Issues in Labor Law (BFM)
As the indemnification provision of the subcontract only requires that the accident arise out of Sky Materials' work, the First Department held that summary judgment should have been granted to the defendants on their third-party contractual indemnification claim against Sky Materials. Although the indemnity provision in the contract between Omnibuild and Sky Materials is broad, it does not run afoul of General Obligations Law § 5-322.1 as it contains the savings language to the “fullest extent of the law”. The extent to which the defendants are entitled to indemnification from Sky Materials will depend on the extent to which the defendants' negligence is determined to have contributed to plaintiff's accident.
Plaintiff allegedly fell while in the process of constructing a scaffold near the top of a five-story building. Although he was tied off to the scaffold while laying down the first scaffolding plank, he admittedly unhooked his harness while laying down the second plank, at which time he fell, claiming the safety line provided to him was insufficient to accommodate the length of his movement around the scaffold. The trial court denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision, finding issues of fact as to whether plaintiff was the sole proximate cause of his accident. While plaintiff and his foreman testified that only a 5- or 6-foot safety line was provided for plaintiff’s use and that the line was too short for plaintiff’s work, plaintiff’s employer testified that a 10-foot retractable safety line had been provided in addition to a 6-foot line and that the retractable line was adequate for plaintiff’s job. Additionally, defendant’s expert opined that plaintiff could have remained tied off at the time he fell, regardless of which safety line was provide. The Court held that such conflicting evidence raised issues of fact as to whether plaintiff “had adequate safety devices available, whether he knew both that they were available and that he was expected to use them, whether he chose for no good reason not to do so, and whether had he not made that choice he would not have been injured”.
With respect to plaintiff’s claim that his foreman approved of him working without being tied off, and that he fell because the scaffolding plank on which he stepped was unsecured, the Court held those arguments are concededly unpreserved and declined to review them since their “resolution involves facts relevant to issues not brought to [defendant]’s attention below”.
PRACTICE POINT: The four elements of the sole proximate cause defense include: (1) plaintiff had an appropriate safety device, which was readily available for use; (2) plaintiff was instructed to use and/or knew he or she was expected to use it; (3) plaintiff failed to use or misused the safety device for no good reason; and (4) had the readily available safety device been properly used, the injuries would not have occurred. Here, there was an issue of fact under the first element because of the conflicting evidence as to whether a 10-foot retractable safety line was readily available to plaintiff.
Plaintiff, a laborer, was allegedly injured while he was erecting a scaffolding structure at a sports event owned, operated, and managed by defendants. At the time of his injury, plaintiff installed a scaffolding pipe vertically on a screwjack, a base that allowed the scaffolding pipe to be adjusted vertically. The scaffolding pipe was 10 to 15 feet long and weighed 40 to 45 pounds. As plaintiff was walking away, the scaffolding pipe fell and hit him on the head. The trial court denied defendants' motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision because there are questions of fact as to whether the scaffolding pipe that fell on plaintiff was “a load that required securing for the purposes of the undertaking at the time it fell”, given the elevation differential, the pipe’s weight, and the amount of force it would generate as it fell. Although the base of the pipe may have been at the same level as plaintiff, the height differential cannot be described as de minimis given the amount of fact the pipe was able to generate. The Court also held defendants failed to show that no protective devices were required, and the risk of harm was foreseeable as the contractors in charge of erecting the scaffolding admitted that a vertical scaffolding pipe would fall over if no horizontal scaffolding pipes were attached.
PRACTICE POINT: When evaluating whether a plaintiff is entitled to the extraordinary protections of Labor Law § 240(1), the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). Thus, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must prove that the object fell, (1) while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute, or (2) that the falling object required securing for the purposes of the undertaking. Here, the defense was unable to prove that no safety devices were required for the injury-producing work because the vertical scaffolding pipe needed to be secured by attaching horizontal scaffolding pipes.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s denial of defendant’s motion for summary judgment on the Labor Law § 241(6) claim based on Industrial Code 12 NYCRR § 23-1.8(c)(1) (relating to head protection). The evidence demonstrated that the workers at the site wore hard hats, but plaintiff misplaced his hard hat after his lunch break, and then the scaffolding pipe hit plaintiff on the head. Moreover, there were triable issues of fact as to whether plaintiff told his supervisor that he misplaced his hard hat, and whether the supervisor told him to work without a hard hat.
Plaintiff was injured while stacking plywood sheets at a construction site. He claims a plywood sheet began to slide off the top of the stack and, as he stepped toward the stack to stop the loose plywood sheet from falling, he allegedly tripped and fell on debris, whereupon the plywood sheet fell on top of him. Nonparty New York City Department of Sanitation (“DOS”) owned the construction site and had hired plaintiff's employer as the general contractor. DOS also retained defendants for construction management services. The trial court denied defendants’ motion for summary judgment dismissing the complaint alleging violations of Labor Law § 240(1), 241(6), and 200.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision, finding that issues of fact existed as to whether defendants were “statutory agents” for Labor Law purposes. While the Court held that defendants established that they were not statutory agents by pointing to evidence that they did not control plaintiff’s work, plaintiff raised issues of fact by submitting deposition testimony, contract documents, and other documentary evidence showing that defendants had been delegated the authority to control the activity that brought about plaintiff’s injury, at least with respect to safety.
Viewing the evidence in the light most favorable to plaintiff, the Court held defendants could not establish that plaintiff was not exposed to a gravity-related risk contemplated by Labor Law § 240(1). In any event, the conflicting evidence as to the height from which the plywood sheet fell, in addition to a lack of evidence as to the weight of the loose plywood sheet and the extent to which plaintiff’s injuries were caused by the plywood sheet, raised issues of fact as to whether the height differential presented a gravity-related risk covered by the statute.
PRACTICE POINT: A statutory agent of an owner or contractor under Labor Law §§ 240(1) and/or 241(6) need only have been delegated the authority to control the injury-producing work; that defendant does not need to supervise, direct, or control the activity that brought about plaintiff’s injury as that only matters under a Labor Law § 200 claim. Where the owner or general contractor delegates to a third-party the duty to conform to the requirements of the Labor Law, then that third-party also becomes the statutory agent subject to liability.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s denial of defendants’ motions for summary judgment finding questions of fact precluded dismissal of the Labor Law § 241 (6) claim. The record raised an issue of fact as to whether the location where plaintiff was stacking the plywood for storage was “"working area” as defined in 12 NYCRR § 23-1.7(e)(2). Moreover, the evidence that plaintiff had used the 2’ x 4’ wood pieces that were strewn on the floor to serve as a base upon which to stack the plywood sheets raised an issue of fact as to whether the wood piece on which he tripped were an integral part of his work.
Labor Law § 200 and Common-Law Negligence (ESB)
Initially, the First Department noted that the Labor Law § 200 and common-law negligence claims arose from both a dangerous premises condition and the means and methods of the injury-producing work. It held that defendants met their burden of proof as to means and methods, and plaintiff failed to oppose on that basis. Accordingly, plaintiff abandoned the means-and-methods argument. However, defendants did not present any evidence with respect to the claims based on a dangerous premises condition. Accordingly, that part of defendant’s motion properly was denied.
Plaintiff, a member of a work crew assigned to disassemble a sidewalk bridge, was standing on the ground floor to receive wooden planks and metal beams being removed from the bridge and handed to him by a coworker, who was standing on the bridge. While holding a wooden plank he had received from the coworker, plaintiff saw a 12-foot metal beam, which had been resting on top of another piece of metal on the bridge, falling a distance of 20 feet and striking him, causing him to fall to the ground. Plaintiff testified the beam was not "something that [he was] supposed to receive or catch," no one removed the beam before it fell, and he did not know why the beam fell. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and denied defendants' motion for dismissal of the § 240(1) and the § 241(6) claim predicated on violations of Industrial Code (12 NYCRR) §§ 23-1.7(a) and 23-3.3(c).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision as plaintiff’s proof demonstrated that his incident was proximately caused by the conceded lack of any safety devices to secure the beam as required under the statute. The Court held that defendants failed to raise triable issues of fact, including as to whether the use of such safety devices would have been contrary to the work of dismantling the sidewalk bridge. The Court rejected defendants’ affidavit indicating that it was not “common practice” to use any safety devices to secure the beam as insufficient to raise an issue of fact.
PRACTICE POINT: Another falling object case. Plaintiff was entitled to summary judgment in this case because securing the metal beam against collapse would not have hindered the purpose of disassembling the sidewalk bridge, as the beam was not integral to the context and purpose of that work.
Labor Law § 241(6) (TPW)
Given the First Department’s decision regarding plaintiff’s Labor Law § 240(1) claim, the Court declined to address the Labor Law § 241(6) claim predicated on violations of Industrial Code (12 NYCRR) §§ 23-1.7(a) and 23-3.3(c).
Plaintiff was allegedly injured when a remotely operated Spyder crane, weighing 4,500 to 6,000 pounds, toppled over the side of a one-foot-high ramp that was constructed to allow the crane to move over a concrete pouring tube to reach an area where it would be used to hoist equipment. The trial court granted plaintiff's motion for partial summary judgment under Labor Law § 240(1) and denied Nobel Construction and Sky View's motion for summary judgment dismissing that claim.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision as plaintiff’s proof established that the ramp, which was three to four-feet wide and lacked barriers at its sides, was inadequate for the purpose of safely moving the crane, which measured four feet in width, and that no other appropriate safeguards were afforded. The Court rejected defendants’ argument that plaintiff’s supervisor negligently operated the crane, causing it to veer off the ramp, as not a defense under the statute.
PRACTICE POINT: This one is easy, as the evidence established that the crane constituted a “load that required securing for purposes of the undertaking” and the ramp failed to prevent the crane from falling over.
Plaintiff was allegedly injured when the platform of a baker's scaffold fell through its framework, causing him to fall four feet to the ground. He was using an unidentified contractor's scaffold, instead of one made readily available by his employer, JD Consulting. The trial court denied the Nostrand defendants’ motion, and the separate motion of Shawmut Woodworking, for leave to renew their opposition to plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
In a prior appeal, the First Department granted summary judgment to plaintiff, holding that “While plaintiff decided to use the scaffold of an unknown contractor, instead of one provided by his employer JD Consulting, that he knew was readily available, there is no evidence that he knew he was expected to use only JD Consulting’s scaffolds”. In this appeal, the Court unanimously affirmed the trial court’s denial of the motions for leave to renew because Shawmut and the Nostrand defendants failed to reasonably justify their failure to elicit the testimony obtained from the second deposition, which they relied on for this appeal, when they had a full and fair opportunity to do so at the first deposition, well before plaintiff moved for summary judgment.
PRACTICE POINT: A motion for leave to renew a prior motion under CPLR 2221(e) must (1) be identified as such; (2) be based on new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and (3) shall contain reasonable justification for the failure to present such facts on the prior motion. Here, defendants could not satisfy the third element and thus were not entitled to renew their opposition to plaintiff’s summary judgment motion.
Plaintiff fell from a plank without rails or netting, three or four feet above a second story balcony, and was injured. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim and denied defendants' motion for summary judgment dismissing the complaint.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision as plaintiff’s fall from a plank devoid of rails or netting, three or four feet above a second story balcony, triggered the extraordinary protections under Labor Law § 240(1). That plaintiff was using the plank to cross a gap between a sidewalk shed and the balcony, rather than standing on it to perform his work, does not render the statute inapplicable.
PRACTICE POINT: Plaintiff was entitled to summary judgment, as the accident arose from an elevation-related hazard contemplated by the statute, and the distance between the balcony and the plank was a “physically significant elevation differential” that posed a risk against which adequate protection was required (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).
Plaintiff was working on a scaffold when it collapsed under him for no apparent reason. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim against Laight Street Fee Owner LLC, Laight Street Fee Owner II LLC, and Sciame Construction, LLC (collectively “defendants”).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed summary judgment to plaintiff as he eliminated all issues of fact as to whether he was the sole proximate cause of his accident. Defendants’ sole proximate cause argument was that plaintiff failed to ensure all of the scaffold’s pins were locked before he used it and based solely on a C-2 report. The Court held that the unknown author did not witness plaintiff’s accident and, thus, the C-2 report did not raise an issue of fact because it does not establish that the pins were, in fact, not locked into place. Accordingly, no one with “personal knowledge of the circumstances surrounding plaintiff’s work at the time of the accident” established that plaintiff did not lock all the pins in place before climbing onto the scaffold.
Additionally, even if it could be established that plaintiff did not lock all the pins in place before ascending the scaffold, this “would amount to only comparative negligence, which is not a defense to a Labor Law § 240(1) claim”. The Court rejected defendants' argument that plaintiff’s putative failure to lock in the pins before using the scaffold constituted his recalcitrance, as there was no evidence that plaintiff was specifically instructed to do so and chose for no good reason not to do so.
The Court also rejected defendants’ contention that plaintiff was the sole proximate cause of his accident because he remained on the scaffold while his coworker moved. There is no evidence to suggest that the coworker’s movement of the scaffold caused, or even contributed to, plaintiff’s accident, as there is no evidence that plaintiff was ever specifically instructed not to ride a scaffold while it was being moved, thus failing to raise an issue of fact as to plaintiff’s recalcitrance; even if he had, plaintiff could only be said to have been, at most, comparatively negligent in doing so.
PRACTICE POINT: Defendants failed to establish that plaintiff knew he did not lock all the pins in place before climbing the scaffold; that he was expected to lock all the pins in place before starting his work on the scaffold; that he “chose for no good reason not to do so”; and that he refused to follow specific instructions not to ride a scaffold while it was being moved. Accordingly, defendants failed to demonstrate that plaintiff’s conduct was the sole proximate cause of his injuries.
Plaintiff testified that the platform of the baker scaffold on which he was standing fell through its frame to the ground. The trial court granted plaintiff's motion for summary judgment under Labor Law § 240(1) claim and denied defendants' cross motion for summary judgment dismissing the claim.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision as plaintiff made a showing of entitlement to partial summary judgment through his testimony that the platform of the baker scaffold on which he was standing fell through its frame to the ground. Plaintiff was not required to identify any prior problems with the scaffold, and the fact that he had been standing on it for an extended period before the accident was not dispositive. Similarly, the fact that plaintiff was the only witness to his accident did not preclude summary judgment in his favor.
The Court rejected defendants’ expert affidavit opining that plaintiff’s second account of the how the accident occurred was physically impossible because defendants failed to establish that the scaffold the expert inspected was the same scaffold involved in the accident. The expert’s assertion that his comparison of the scaffold he inspected with post-accident photographs of the one involved in the accident confirmed that they were the same is conclusory, and the Court held his sole reliance on a hearsay statement of an employee of defendant Monadnock cannot defeat summary judgment. Even if the scaffold that was inspected was the one involved in the accident, defendants failed to establish that the scaffold was in the same condition as it was on the date of the accident three years earlier.
PRACTICE POINT: It does not help the defense to argue that plaintiff was the only witness to his accident. Since the scaffold fell through its frame to the ground, plaintiff was entitled to summary judgment. Early investigation is critical in Labor Law cases and may have afforded the defense an opportunity to inspect the scaffold that was involved in the accident.
Plaintiff was allegedly injured while working on a project restoring the façade of defendants' building when a coworker moved the mechanical scaffold on which plaintiff was working, causing his foot to become crushed against a metal bar of a tower that was part of the mast climber scaffold. Plaintiff alleges the tower should have been guarded by a mesh enclosure to prevent such accidents. The trial court denied defendants' motion for summary judgment dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s decision denying defendant’s motion for summary judgment. The conflicting affidavits of the parties' experts raised triable issues of fact as to whether the absence of a rail on the scaffold where plaintiff was working violated Industrial Code § 23-1.22(c)(2) and contributed to the accident, and whether the absence of a protective mesh enclosure around the tower violated Industrial Code § 23-9.2(a) or (d). However, Industrial Code § 23-9.2(b)(1) was confirmed to be “merely a general safety standard that does not give rise to a nondelegable duty under the statute” and § 23-9.2(b)(2) was deemed inapplicable to the accident that occurred, given an operator was at the controls at the time of the accident.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of defendants’ motion as to Labor Law § 200 and common-law negligence, finding issues of fact existed as to whether the unguarded mast climber tower of the scaffold was a dangerous and defective condition of the workplace, and whether defendants created or had constructive knowledge of the defective condition. The Court rejected defendants’ integral-to-the-work defense, which applies when eliminating the alleged defective condition would be “impractical and contrary to the very work at hand” and inconsistent with accomplishing a task that was “an integral part of the job”. The Court also held the record did not establish that a protective enclosure could not have been installed around the tower before the accident, since the tower had already been erected and attached to the wall at the time of the accident.
Plaintiff fell from a ladder on property while attempting to inspect a roof to repair a leak. Defendant owned the property, which had multiple residential apartments, and allowed plaintiff to live rent-free in one of the apartments in exchange for maintaining the property. The trial court granted plaintiff's motion for summary judgment on Labor Law § 240(1) claim and denied defendant's cross-motion for summary judgment dismissing the complaint.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision because plaintiff established that the ladder was defective, inasmuch as it was missing its right leveling foot; the accident occurred because the ladder was not properly secured; and the feet of the ladder “kicked” backwards from the wall. Plaintiff’s proof demonstrated that he was not provided with a proper and adequate safety device to perform the work at an elevated height, and that such failure to provide proper equipment was a proximate cause of the accident.
PRACTICE POINT: Whether a device provides proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support plaintiff and his or her materials. With respect to accidents involving ladders, there must be evidence that the subject ladder was defective or inadequately secured, and that the defect, or the failure to secure the ladder, was a substantial factor in causing plaintiff’s injuries.
Plaintiff was performing exterior painting work at defendant’s premises and leased to Champz of Binghamton, LLC d/b/a Peterson's Tavern. Plaintiff’s work required him to climb a ladder from which he subsequently fell. The trial court partially granted defendants’ motion for summary judgment by dismissing two violations of Labor Law § 241(6), but otherwise denied defendants’ and plaintiffs' motion for summary judgment.
Labor Law § 240(1) (MAS)
The Third Department affirmed the trial court’s decision to deny both motions under Labor Law § 240(1). Although plaintiff was subjected to an elevation-related hazard to which the statute applies, questions of fact exist as to whether this statute was violated because the parties offer competing information as to who retrieved and set up the ladder that plaintiff was using or misusing upside down. Moreover, even if it was established that defendants secured the ladder with rope, “[w]here an employee has been provided with an elevation-related safety device, it is usually a question of fact as to whether the device provided proper protection”.
PRACTICE POINT: An injured worker must demonstrate that an owner or contractor breached the statutory duty under Labor Law § 240(1) to provide a worker with adequate safety devices, and that this breach proximately caused the worker’s injuries. These prerequisites do not exist if an adequate safety device is available at the job site, but the worker either does not use or misuses it. Since both parties offer competing evidence as to who retrieved and set up the ladder plaintiff was using or misusing, neither party was entitled to summary judgment.
Labor Law § 241(6) (TPW)
The Third Department affirmed the trial court’s denial of that branch of defendants' summary judgment motion as it related to plaintiff's Labor Law § 241 (6) claim. As the Court reiterated "Labor Law § 241 (6) imposes a nondelegable duty upon owners, contractors and their agents to provide adequate protection and safety for workers and, to establish a claim under this section, a plaintiff must allege that the defendants violated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specific standard of conduct".
Plaintiff alleged a violation of Labor Law § 241 (6) predicated on the regulation which requires ladders be maintained in good condition and free of “a broken member or part” (12 NYCRR 23-1.21 [b] [3] [i]), and that “[a]ll ladder footings shall be firm” and not used on slippery surfaces. Defendants’ proof as to this claim was limited to plaintiff’s testimony that he did not notice any defects in the ladder at the time of its use. However, plaintiff also testified that there were no feet at the base of the ladder at that time, which created a question of fact as to whether a violation of the Industrial Code 12 NYCRR 23-1.21 [b] [3] [i]; [4] [ii] could be based. Therefore, defendants failed to establish, as a matter of law, that those regulations were not violated or that any violation of those regulations was not a substantial factor in causing the accident.
Labor Law § 200 and Common-Law Negligence (ESB)
The Third Department affirmed denial of defendants’ motion as to Labor Law § 200. In this hazardous condition case, plaintiff and the tavern manager each blamed the other for retrieving the ladder and placing it upside down before plaintiff began using it. Defendants claim that one of their employees tied off the top of the ladder on a second-floor window before plaintiff started painting. Plaintiff disputed that allegation for several reasons, including his assertion that the tavern manager was initially holding the bottom of the ladder for him and walked away without warning. Based on this, the Court held defendants failed to eliminate questions of fact regarding whether they created the allegedly dangerous condition of the ladder and/or had no notice of this condition.
Plaintiff in the underlying Labor Law action (O'Connor) commenced that action against XL Construction pursuant to Labor Law §§ 240(1), 241(6), and 200 seeking damages for injuries he sustained during his work as a self-employed drywall finishing subcontractor on a construction project. XL Construction subcontracted that drywall work to O'Connor and, as part of a written indemnification and insurance agreement between those two parties, O'Connor was obligated to obtain insurance for the benefit of XL Construction.
O'Connor was insured by defendant under a policy containing an additional insureds endorsement that provided coverage to a party where required by a written agreement, but “only with respect to liability for ‘bodily injury’ . . . caused, in whole or in part, by . . . [O'Connor's] acts or omissions”. The trial court, in a declaratory judgment action, granted plaintiffs’ motion for partial summary judgment.
Indemnity Issues in Labor Law (BFM)
The Fourth Department affirmed the trial court’s granting of plaintiff’s summary judgment motion, which sought a declaration that the defendant was obligated to defend and indemnify XL Construction as an additional insured in the underlying Labor Law action. The Court noted that the duty to defend is exceedingly broad and that such a duty is owed whenever the allegations of the complaint suggest a reasonable possibility of coverage. While the endorsement language at issue here only “applies to injury proximately caused by the named insured,” there can be more than one proximate cause of an injury. As the underlying complaint suggests a reasonable possibility that O'Connor's own negligence was a proximate cause of his injuries, a duty to defend was owed. The Court pointed out that although the underlying complaint alleged Labor Law violations on the part of XL Construction, and not negligence by O'Connor himself, such a distinction is of no consequence as the allegations in the underlying complaint brought the claim potentially within the protection purchased and triggered defendant's duty to defend.
 New York Industrial Code Regulations (EDA)
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12 NYCRR 23-1.24(a)(2)(ii) Crawling board installation. Crawling boards shall be secured to a roof by ridge hooks or equally effective means.
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Regulation § 23–1.24(a)(2)(ii), specifying the specifications for crawling board installation, is likely sufficiently specific to support a Labor Law § 241(6) claim.
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Labor Law Pointers
Editor
David R. Adams
Associate Editor
Eric S. Bernhardt
Associate Editor
Brian F. Mark
Associate Editor
Timothy P. Welch
Associate Editor
Marc A. Schulz
Associate Editor
Eric D. Andrew
Labor Law Team
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