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Labor Law Lecture
The Impact of the
Scaffold Law on Construction
Lawsuit Reform Alliance
Lawsuit Reform Alliance - Labor Law Outline
Presented by:
Ellen H. Greiper [email protected] | 516.281.9894
Theodore W. Ucinski [email protected] | 516.281.9860
www.goldbergsegalla.com
NEW YORK | LONDON | CHICAGO | PHILADELPHIA | ORLANDO | MIAMI
WEST PALM BEACH | BALTIMORE | ST. LOUIS | GREENSBORO | HARTFORD | PRINCETON NEWARK | BUFFALO | ROCHESTER | SYRACUSE | ALBANY | WHITE PLAINS | GARDEN CITY
200 GARDEN CITY PLAZA, SUITE 520 | GARDEN CITY, NY 11530
Lawsuit Reform Alliance - Labor Law Outline
1. Introduction/Overview and Background of the Labor Law
2. Labor Law §200-Liability based upon Fault
A. Codification of the common law duty imposed upon an owner or general
contractor to provide a safe place to work. [Comes v. NYS Elec. & Gas, 82
N.Y.2d 876 (1993)]
B. Negligence standard applies. [Reyes v. Arco Wentworth Management, 2011
NY Slip Op 1988 (2nd
Dep’t 2011)]
(i) Defects in the premises.
1. Defendant created the condition or had actual or constructive
notice [Mitchell v. New York Univ., 12 A.D.3d 200 (1st Dep’t
2004)]
(ii) Defect in the equipment or work.
1. It must be shown that the owner or general contractor had
authority to supervise the means and methods of the work.
[Allan v. DHL Express (USA) Inc., 2012 WL 4900818 (2nd
Dep’t 2012)]
C. Defenses
(i) General supervision is insufficient to establish liability. [Landa v. City
of New York 17 A.D.3d 180 (1st Dep’t 2005)]
(ii) Plaintiff’s comparative negligence considered.
3. Labor Law §241(6)-Liability imposed by Status [see generally Fusca v. A&S Construction,
LLC 84 A.D.3d 1155, 924 N.Y.S.2d 463 (2nd
Dep’t 2011]
A. Imposes a non-delegable duty upon owners and contractors to maintain a safe
work site.
B. Liability is not based upon fault and an injured plaintiff does not need to
prove that the owner or general contractor supervised or directed the work.
C. Plaintiff is required to prove a violation of a concrete section of the Industrial
Code of the State of New York. [Ross v. Curtis-Palmer 81 N.Y.2d 494
(1993)]
D. The violation of the Industrial Code must have proximately caused the
Accident. See 12 N.Y.C.R.R. 23
E. OSHA, NYC Administrative Code or Building Code are insufficient to
establish a violation of this section
F. Defenses
(i) General Safety Requirement v. Specific Mandate
(ii) Plaintiff comparative negligence considered
(iii) Integral to the Work [Sanders v. St Vincent’s Hospital 95 A.D.3d
1195, 945 N.Y.S.2d 343 (2nd
Dep’t 2012)]
4. Labor Law §240(1)-Liability Imposed by Status
A. Statutory Liability
(i) No comparative Fault
(ii) Article 16 Does Not Apply (apportionment of liability between
tortfeasors)
B. Applies to General Contractors, Owners and Statutory Agent
(i) One and Two Family Homeowner Exception [Bartoo v. Buell 87
N.Y.2d 362, 639 N.Y.S.2d 778 (1996)]
C. Applies to Gravity Related Risks
(i) Falling Worker and Falling Object cases [Rocovitch v. Consolidated
Edison, 78 N.Y.2d 509, 577 N.Y.S.2d 219 (1991)].
(ii) Objects in the process of being Secured or lifted [Narducci V,
Manhasset Bay Assoc., 96 N.Y.2d 259]
(iii) New Standard –Injuries sustained as a result of the Effects of Gravity
[Runner v. New York Stock Exchange Inc. 13 N.Y.3d 599, 895
N.Y.S.2d 279 (2009)]
(iv) Goldberg Segalla Labor Law Quarterly – recent case law
D. Accident must have occurred during the erection, demolition, repairing,
altering, painting, cleaning or pointing of a building or structure.
(i) Routine Maintenance insufficient
E. Defenses
(i) Sole Proximate Cause and Recalcitrant worker
1. Hybrid defense of Sole Proximate Cause and Recalcitrant
Worker [Gallagher v. The New York Post, 14 N.Y.3d 83, 896
N.Y.S.2d 732 (2010)]
5. Lawyer Driven Medicine – The Increase in Traumatic Brain Injury Claims and Spinal
Fusion Claims
A. Statistics
B. Increased injury value = Increased contractor costs
6. The Scaffold Law’s Effect on Construction in New York State
A. Withdrawal of larger insurers from the New York market
B. Increased insurance premiums prevent small business from competing
C. Increased risk management necessary to control claims
D. Proposed Federal Statute
New York Labor Law §240(1)
All contractors and owners and their agents, except owners of one and
two-family dwellings who contract for but do not direct or control the
work, in the erection, demolition, repairing, altering, painting,
cleaning or pointing of a building or structure shall furnish or erect, or
cause to be furnished or erected for the performance of such labor,
scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys,
braces, irons, ropes, and other devices which shall be so constructed,
placed and operated as to give proper protection to a person so
employed.
No liability pursuant to this subdivision for the failure to provide
protection to a person so employed shall be imposed on professional
engineers as provided for in article one hundred forty-five of the
education law, architects as provided for in article one hundred forty-
seven of such law or landscape architects as provided for in article
one hundred forty-eight of such law who do not direct or control the
work for activities other than planning and design. This exception
shall not diminish or extinguish any liability of professional engineers
or architects or landscape architects arising under the common law or
any other provision of law.
New York Labor Law §241(6)
All contractors and owners and their agents, except owners of one and
two-family dwellings who contract for but do not direct or control the
work, when constructing or demolishing buildings or doing any
excavating in connection therewith.
All areas in which construction, excavation or demolition work is
being performed shall be so constructed, shored, equipped, guarded,
arranged, operated and conducted as to provide reasonable and
adequate protection and safety to the persons employed therein or
lawfully frequenting such places. The commission may make rules to
carry into effect the provisions of this subdivision, and the owners and
contractors and their agents for such work, except owners of one and
two-family swellings who contract for but do not direct or control the
work, shall comply therewith.
23 NYCRR 1.7 Protection from General Hazards
(a) Overhead hazards.
(1) Every place where persons are required to work or pass that is normally exposed to
falling material or objects shall be provided with suitable overhead protection. Such overhead
protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid
three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead
protection shall be provided with a supporting structure capable of supporting a loading of 100
pounds per square foot.
(2) Where persons are lawfully frequenting areas exposed to falling material or objects but
wherein employees are not required to work or pass, such exposed areas shall be provided with
barricades, fencing or the equivalent in compliance with this Part (rule) to prevent inadvertent entry
into such areas.
(b) Falling hazards.
(1) Hazardous openings.
(i) Every hazardous opening into which a person may step or fall shall be guarded
by a substantial cover fastened in place or by a safety railing constructed and installed in
compliance with this Part (rule).
(ii) Where free access into such an opening is required by work in progress, a barrier
or safety railing constructed and installed in compliance with this Part (rule) shall guard
such opening and the means of free access to the opening shall be a substantial gate. Such
gate shall swing in a direction away from the opening and shall be kept latched except for
entry and exit.
(iii) Where employees are required to work close to the edge of such an opening,
such employees shall be protected as follows:
(a) Two-inch planking, full size, or material of equivalent strength installed
not more than one floor or 15 feet, whichever is less, beneath the opening; or
(b) An approved life net installed not more than give feet beneath the
opening; or
(c) An approved safety belt with attached lifeline which is properly secured
to a substantial fixed anchorage.
(2) Bridge or highway overpass construction.
(i) Approved safety belts shall be provided for and used by persons employed at
elevations greater than 30 feet above land or water during bridge or highway overpass
construction or at any elevation during structural or construction work performed over
highways or railroads open to public traffic.
(ii) Scaffolds, platforms or approved life nets may be provided as alternatives to
approved safety belts. When used, such alternatives shall be installed nor more than give
feet below the lower edge of the structural members on or above which the persons to be
protected are working. Such scaffolds, platforms or life nets shall be installed and
maintained at all times when persons are working except when such safety members or
assemblies, in which case approved safety belts shall be worn.
(c) Drowning hazards. Where ant person is exposed to the hazard of falling into water beneath his
work location in which he might drown, equipment for the prompt rescue of such person from the
water shall be provided. Such equipment shall consist of a manned boat of a size suitable for the
existing water conditions and area. Such boat shall be equipped with oars, with United States Coast
Guard approved life preservers, with a life ring fastened to a line not less than 50 feet in length and
with a boat hook. Such boat shall continuously patrol the area beneath the work location at all times
when any person is exposed to the falling and drowning hazard.
(d) Slipping hazards. Employers shall not suffer or permit any employee to use a floor,
passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery
condition. Ice, snow, water, grease and any other foreign substance which may cause slippery
footing shall be removed, sanded or covered to provide safe footing.
(e) Tripping and other hazards.
(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris
and from any other obstructions or condition which could cause tripping. Sharp projections which
could cut or puncture any person shall be removed or covered.
(2) Working areas. The parts of floors, platforms and similar areas where persons work or
pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials
and from sharp projections insofar as may be consistent with the work being performed.
(f) Vertical passage. Stairways, ramps or runways shall be provided as the means of access to
working levels above or below ground except where the nature or the progress of the work prevents
their installation in which case ladders or other safe means of access shall be provided.
(g) Aircontaminated or oxygen deficient work areas. The atmosphere of any unventilated confined
area including but not limited to a sewer, pit, tank or chimney where dangerous air contaminants
may be present or where there may not be sufficient oxygen to support life shall be tested by the
employer, his authorized agent or by a designated person before any person is suffered or permitted
to work in such area. Such testing shall be in accordance with the provisions of Industrial Code Part
(rule) 12 relating to the “Control of Air Contaminants” and such areas shall be subject to the other
pertinent provisions of Industrial Code Part (rule) 12 and of Industrial Code Part (rule) 18 relating
to “Exhaust Systems”.
(h) Corrosive substances. All corrosive substances and chemicals shall be so stored and used as not
to endanger any person. Protective equipment for the use of such corrosive substances and
chemicals shall be provided by the employer.
New York Labor Law §200
All places to which this chapter applies shall be so constructed,
equipped, arranged, operated and conducted as to provide reasonable
and adequate protection to the lives, health and safety to all persons
employed therein or lawfully frequenting such places. All machinery,
equipment, and devices in such places shall be so placed, operated,
guarded, and lighted as to provide reasonable and adequate protection
to all such persons. The board my make rules to carry into effect the
provisions of this section.
New York Workers’ Compensation Law §11
An employer shall not be liable for contribution or indemnity to any
third person based upon liability for injuries sustained by an employee
acting within the scope of his or her employment for such employer
unless such third person proves through competent medical evidence
that such employee has sustained a grave injury, which shall mean
only one or more of the following: death, permanent and total loss of
use or amputation of an arm, leg, hand or foot, loss of multiple
fingers, loss of multiple toes, paraplegia or quadriplegia, total and
permanent blindness, total and permanent deafness, loss of nose, loss
of ear, permanent and severe facial disfigurement, loss of an index
finger or an acquired injury to the brain caused by an external
physical force resulting in permanent total disability.
Labor Law Update
Editor’s Note This reporting period saw the continuing erosion of the protections of the one to two family homeowner exceptions under §240(1) and §241(6) of the Labor Law.
In recent decisions, the court looked to the nature of the site, the purpose of the work being performed, and the owner’s intentions at the time of the injury.
In Sandals v. Shemtov, 138 A.D.3d 720 the court found the property owner was not liable under §240(1) and §241(6) due to the homeowner exception, despite the fact that the property was classified as a multiple dwelling. The court held the owner didn’t have authority to control or supervise the means or methods of the plaintiff’s work. Similarly, in Feilen v. Christman, 135 A.D.3d 1130, the court found that despite mixed residential and commercial use, the homeowners exception would apply. The court found the work involved only took place in the residential portion of the house and therefore applied the exception.
Note that the courts examine the owners intentions at the time of the injury. In Batzin v. Ferrone, 140 A.D.3d 1102, the owner used the property for commercial use. The owner did not reside in the home at the time of the accident and invoices and materials were shipped to the owner. The court stated that the homeowner exception was not intended to insulate the owner from liability where the home is used for commercial use.
Finally, the courts continue to illustrate the heavy burden that defendants bear to defend against a §240(1) claim involving a fall off a ladder. Nazario v. 222 Broadway, LLC, 135 A.D.3d 506, Hill v. City of NY, 140 A.D.3d 568 and Baugh v. NYC Sch. Constr. Auth.,140 A.D.3d 1104 serve to illustrate that plaintiff’s claimed misuse of the ladder is insufficient to establish plaintiff as the proximate cause of the accident if plaintiff was not provided additional safety devices.
Please note that the second edition of the New York State Bar Association’s Construction Site Personal Injury Litigation §200, 240(1), and 241(6), edited by Goldberg Segalla’s Construction Practice Group, is available. For more information, please contact me or visit the NYSBA website.
As always, we hope you find this edition of Labor Law Update to be a helpful and practical resource. If you have any questions about the cases or topics discussed in this newsletter, or any feedback on how we can make Labor Law Update more useful for you, please do not hesitate to contact me.
Best,
Ellen H. Greiper, PartnerDIRECT 516.281.9894 | [email protected]
IN THIS ISSUE:• Safety first: The court continues
to evaluate safety devices, their availability, and the impact of height differentials on safety- and gravity-related cases
• Applying the homeowner’s exemption to mixed residential and commercial property
• Establishing control: Proving who controlled the worksite is crucial when defending a “dangerous condition” claim
• Analysis of more than 30 cases from New York’s appellate courts
Summer 2017
2 Labor Law Update | Summer 2017
FIRST DEPARTMENT
Nazario v. 222 Broadway, LLC135 A.D.3d 506 (1st Dept. 2016)January 14, 2016
Plaintiff was injured when he fell from an unsecured — but not defective — ladder, after receiving an electric shock. The court granted plaintiff’s motion for summary judgment on his §240(1) claim. It held that defendant’s failure to properly secure a ladder to ensure it remained steady and erect while in use constituted a §240(1) violation that proximately caused the accident. Defendants’ arguments that plaintiff caused his own injuries by failing to wear protective gloves could, at most, establish comparative negligence. The court granted defendants’ contractual indemnification claims against the subcontractor since plaintiff’s injuries arose out of the work per-formed under the subcontract.
Practice Note: The concurring opinion questioned whether §240(1) should be applied to protect workers from the danger associated with the force of electricity when it is designed to protect against dangers associated with the force of gravity particularly in the absence of evidence that the ladder contributed to the accident. However, the court noted that there is nothing in §240(1) to suggest that falls from elevated surfaces following contact with live electricity should be exempted from the statute.
Topics: Gravity-Related Hazard; Defective or Inadequate Protection; Failure to Provide Protection; Sole Proximate Cause; Ladder
Somereve v. Plaza Constr. Corp. 136 A.D.3 537 (1st Dept. 2016)February 18, 2016
Plaintiff was injured when the forklift he was operating tipped over and ejected him. The court granted plaintiff’s motion for partial summary judgment on his §240(1) claim. The court held that the failure to provide a proper hoisting device to protect plaintiff violated §240(1). Defendants’ arguments that the machine may have been overloaded or that plaintiff’s operation caused the forklift to tip over were only relevant to comparative negligence, which is not a defense to a §240(1) claim, Plaintiff is not required to have acted in a manner completely free of negligence.
Practice Note: Plaintiff’s motion was granted prior to defendants’ depositions of two witnesses to the accident. The court noted that any such testimony would only be relevant to plaintiff’s potential comparative negligence.
Topics: Gravity-related Hazard; Scaffold; Comparative Negligence; Failure to Provide Protection;
Costa v. State of New York141 A.D.3d (1st Dept. 2016)May 26, 2016
Plaintiff was injured when a metal beam collapsed and struck him. The court held that a lessee’s total con-trol of a property does not excuse the owner from liability under §240(1). Under §240(1), the only exception to owner liability is for owners of one- and two-family dwellings who contract for, but do not direct or control, the work. The court, however, granted the property owner’s motion to dismiss where another legislative enactment exempted the owner from liability under the labor law. Practice Note: This was a rare case where a legislative enactment exempted the defendant from liability.
Topics: Labor Law; Property Owner; Exceptions to 240(1); Absolute Liability
3Labor Law Update | Summer 2017
FIRST DEPARTMENT
McCrea v. Arnlie Realty Co. LLC140 A.D.3d 427 (1st Dept. 2016)June 7, 2016
Plaintiff was injured when an elevator he was repairing fell on top of him. The court held that the owner was subject to absolute liability under §240(1) because plaintiff was engaged in an activity protected by the statute. The elevator was afalling object within the meaning of the Labor Law. The court denied summary judgment to both parties under §200 where it found issues of fact as to whether the owner had supervisory control over the means and methods of plaintiff’s work. Specifically, it found that there were triable factual issues as to whether the parties’ course of conduct altered the agreement. The court held further that plaintiff failed to establish that the owner gave him specific instructions.
Practice Note: While the subcontract provided that the owner would shut off power to the elevator in case of repair, the court held that the parties’ course of conduct may have altered or waived this provision.
Topics: Absolute Liability; Means & Methods; Repair; Protected Activity; Course of Conduct; Supervisory Control; Subcontract
Hill v. City of New York140 A.D.3d 568 (1st Dept. 2016)June 23, 2016
Plaintiff was injured when the ladder he was using to perform HVAC work wobbled, causing him to fall. He did not have any harness equipment. The court granted plaintiff summary judgment on his §240(1) claim against the owner and tenant because plaintiff had not been provided an adequate safety device. The court denied plaintiff summary judgment on his §241(6) claim predicated on a violation of the Industrial Code because there were issues of fact as to whether the ladder used was missing rubber feet.
Practice Note: The court emphasized the fact that the ladder did not prevent plaintiff from falling and that there were no safety devices provided to plaintiff to prevent him from falling.
Topics: Gravity-Related Risk; Ladder; Safety Device; Fall; Failure to Provide Protection
4 Labor Law Update | Summer 2017
SECOND DEPARTMENT
Aslam v. Neighborhood Partnership Hous. Dev. Fund Co., Inc.135 A.D.3d 790 (2d Dept. 2016)January 20, 2016
Plaintiff was injured after he fell from a scaffold. The defendant owner and general contractor claimed that the plaintiff was expressly prohibited from working on the building until certain demolition work was first completed. The court denied the plaintiff’s §240(1) motion inasmuch as the defendants had raised a triable issue of fact as to whether the plaintiff was actually permitted to work on the site on the dateof the accident.
Practice Note: The court stressed that in order to get the protection of §240 of the Labor Law, a plaintiff must demonstrate that he or she was permitted to work on a building or structure and hired by an owner, contractor, or their agent.
Topics: Application of Labor Law; Protected Activity; Fall From Scaffolding
Scofield v. Avante Contr. Corp.135 A.D.3d 929 (2d Dept. 2016)January 27, 2016
Plaintiff was injured when he fell from a six foot A-frame ladder while performing HVAC work at a condominium construction project. The plaintiff had successfully completed the same task using the same ladder in four or five rooms without incident. In the fifth room, the plaintiff could not position the ladder directly under his work area due to sheetrock in his work location. While the ladder was firmly on the ground, it tipped, and plaintiff fell to the ground as he reached three to four feet to his right to complete the task. The court granted the owner and general contractor’s motions to dismiss the §240(1) claim holding that plaintiff improperly positioned and misused the ladder, which was the sole proximate cause of the plaintiff’s injuries.
Practice Note: The court noted the plaintiff’s prior successful uses of the ladder, performing the identical task, when reaching its decision that the plaintiff improperly positioned the ladder.
Topics: Elevation Related Hazard; Application of Labor Law; Unsecured Ladder; Sole Proximate Cause
Zubaidi v. Hasbani136 A.D.3d 704 (2d Dept. 2016)February 3, 2016
Plaintiff, a plumber, was injured when he fell from stairs at the owner’s property. The owner moved for common law indemnification against the contractor at the construction site. The court dismissed the common law indemnification claim holding that the contractor had created its prima facie case that was not responsible for the negligence that contributed to the accident, and it lacked the authority to direct, supervise, or control the work giving rise to the injury.
Practice Note: A party moving for common law indemnification must prove not only that it was not negligent but that the proposed indemnitor was responsible for the negligence that contributed to the accident or had the authority to direct, supervise, and control the work giving rise to the injury.
Topics: Common Law Indemnification; Authority to Direct or Control
5Labor Law Update | Summer 2017
SECOND DEPARTMENT
Korostynskyy v. 416 Kings Highway, LLC136 A.D.3d 758 (2d Dept. 2016)Febraury 10, 2016
Plaintiff was injured when a worker and construction materials from scaffolding on a neighboring construction fell through a skylight and onto him while he was working on the owner’s building. The court denied the owner’s motion seeking to dismiss the §200 claim inasmuch as there were unresolved questions regarding the location of the adjacent property’s scaffolding in relation to the owner’s property, and whether the owner personally saw materials being stacked and left unsecured over the skylight.
Practice Note: Labor Law §200 may be imposed on a property owner even if the alleged dangerous condition was on an adjacent property.
Topics: Fall From Scaffolding; Elevation Related Hazard
Sanchez v. Metro Bldrs. Corp.136 A.D. 3d 783 (2d Dept. 2016)February 10, 2016
While pushing snow off from the roof on the construction of a new single family house, the plaintiff fell three stories to the ground when the knotted rope tied around his waist came loose. The court found that the general contractor was a statutory agent of the property owner, and liable under §240(1) since the general contractor coordinated and supervised the project, hired and paid the subcontractors, and failed to provide adequate safety devices to the plaintiff, proximately causing his injuries. The court dismissed plaintiff’s §200 claim noting that the right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or ensure compliance with safety regulations and contract specifications, would not impose liability.
Practice Note: A general contractor is not considered a statutory agent of the property owner under §240(1) unless the contractor has the authority to supervise and control significant aspects of the construction project, such as safety, at the time of the accident.
Topics: Elevation Related Hazard; Statutory Agent; General Supervision of Work; Property Owner
Ramos v. Penn Tower, LLC136 A.D. 3d 1009 (2d Dept. 2016)February 24, 2016
Plaintiff was injured when a piece of wood flew back and hit his right eye while using a table saw to cut it. He cited 12NYCRR 23-1.8(a), pursuant to §241(6), alleging that he was not provided adequate eye protection while using the saw. The court denied summary judgment under this provision holding that there were questions of fact as to whether the statute was violated based on the deposition transcript of a witness who visited the property on the date of the plaintiff’s accident revealing testimony as to whether safety goggles were available despite the plaintiff’s claim that “there was nothing” to protect his eyes.
Practice Note: The court looked at the testimony of all parties, viewing the evidence in the light most favorable to the defendants and resolving all inferences in the defendant’s favor, to conclude that record failed to eliminate triable issues of fact.
Topics: Industrial Code Regulations; Defective or Inadequate Safety Device
6 Labor Law Update | Summer 2017
SECOND DEPARTMENT
Saavedra v. 64 Annfield137 A.D.3d 771 (2d Dept. 2016)March 2, 2016
Plaintiff sustained injuries while he and a coworker were installing wooden coverings to metal support columns. The plaintiff and his co-workers constructed and used an unsecured makeshift structure by affixing wooden planks on top of each other over metal rebar protruding from the concrete ground floor, despite the presence of an A-frame ladder in the immediate vicinity and metal scaffolding on the same level. The court dismissed the plaintiff’s §240(1) claim holding that the plaintiff was the sole proximate cause of the accident due to the use of the makeshift and unsecured structure.
Practice Note: The court declined to consider the plaintiff’s affidavit inasmuch as it was improperly translated from Spanish into English due to the lack of the name and qualifications of the translator.
Topics: Elevation Related Hazard; Unsecured Ladder; Sole Proximate Cause
Kupiec v. Morgan Contr. Corp.137 A.D.3d 872 (2d Dept. 2016)March 9, 2016
Plaintiff, a waterproofer, was injured when he stepped into a hole in the scaffold between the second and third floors of the building. The plaintiff argued that the scaffolding was not suitable to protect him from the alleged elevation related hazard since it was missing foot planks and a guardrail at thelocation of his fall. The court agreed and held that there was sufficient evidence to hold the general contractor liable under §240(1), despite the allegation that the plaintiff removed the guardrail before his accident, inasmuch as the contractor’s witnesses did not have personal knowledge of the facts of the accident or the condition of the scaffold at the time of the accident.
Practice Note: The court noted that the testimony proffered by the general contractor was inadmissible hearsay and had no probative value.
Topics: Elevation Related Hazard; Hearsay; Fall From Scaffolding
Chilinski v. LMJ Contr., Inc.137 A.D.3d 1185 (2d Dept. 2016)March 30, 2016
Plaintiff, a welder, fell through a purposely designed opening in a platform floor that had been temporarily covered with a piece of plywood while installing a commercial bakery oven. The owner moved for conditional summary judgment under §200 against the general contractor hired to install the oven. The court denied the owner’s motion holding that the own-er failed to establish that the accident occurred solely from the method or manner of the work performed, and not from a dangerous condition on the property, or that the owner did not create or have notice of the alleged dangerous condition. The court granted the contractor’s motion to dismiss the owner’s claim for comon law indemnification inasmuch as the contractor provided unrefuted evidence that it was not involved in the construction of the plywood cover and did not direct, control, or supervise the plaintiff’s work.
Practice Note: The court denied the subcontractor’s motion seeking to dismiss the owner’s third-party claim for common law indemnification finding, inter alia, that the subcontractor’s expert affidavit in support of why the plywood was not defective did not describe why the subject plywood cover was similar to the pieces of wood that the expert had tested, and failed to consider conflicting evidence in the record including the size and opening of the plywood.
Topics: Common Law Indemnification; Manner and Method of Work; Dangerous Condition on Premises
7Labor Law Update | Summer 2017
SECOND DEPARTMENT
Sandals v. Shemtov138 A.D.3d 720 (2d Dept. 2016)April 6, 2016
Plaintiff was injured when a ladder he was standing on to paint a fire escape slipped backwards. The court held that the property owner was not liable under either §240(1) or 241(6) due to the homeowner’s exemption despite the fact that the property was classified as a multiple dwelling. The court also held that the owner did not have the authority to control or supervise the means and methods of the plaintiff’s work or had notice of the alleged dangerous condition.
Practice Note: The court relied on the homeowner’s sister in law’s testimony that the property was divided into only two separate living spaces and functioned exclusively as a private home for the owner’s family members.
Topics: Means and Methods of Work; One- or Two-Family Dwelling Exception
Vitale v. Astoria Energy II, LLC30 N.Y.S.3d 213 (2d Dept. 2016)April 20, 2016
Plaintiff, a surveyor, was injured when his left leg fell into a square opening across the top of a rebar grid, five feet off the ground. The court held that §240(1) did not apply since the opening, measuring at most 12 inches by 12 inches, was not of a dimension that would have permitted the plaintiff’s body to completely fall through and, therefore, did not present an elevation-related hazard. The court similarly held that the statute predicated on plaintiff’s §241(6) was inapplicable since the opening was not a “hazardous opening” pursuant to 12 NYCRR 23-1.7(b) due to the fact that the dimension of the opening would not have allowed the plaintiff to fall completely through.
Practice Note: The size of an alleged opening, and whether it is large enough for a person to fall through, is dispositive in analyzing claims under both 240(1) and 241(6).
Topics: Elevation Related Hazard; Industrial Code Regulations; Application of Labor Law
Kosinski v. Brendan Moran Custom Carpentry, Inc.30 N.Y.S.3d 237 (2d Dept. 2016)April 20, 2016
Plaintiff, a carpenter, was injured when he fell from a ladder while working at the defendant’s single family home. Noting that there was a question of fact as to whether the plaintiff misused the ladder and whether the misuse was the sole proximate cause of the accident, the court denied the plaintiff’s §240(1) motion. However, the court granted the owner’s motion to dismiss the plaintiff’s §241(6) and §240(1) causes of action inasmuch as there was no evidence that the owner controlled or directed the work performed and the work performed directly related to the residential use of the home.
Practice Note: The court stopped short of dismissing the claim under §200 inasmuch as the owner could not, prima facie, show that she did not have the authority to exercise supervision and control over the plaintiff’s work.
Topics: Authority to Control Work; Sole Proximate Cause; Fall From Ladder
8 Labor Law Update | Summer 2017
SECOND DEPARTMENT
Felix v. Klee & Woolf, LLP138 A.D.3d 920 (2d Dept. 2016)April 20, 2016
In a legal malpractice action, the plaintiff sued her attorneys alleging that she had viable claims under §240(1), §241(6), and §200, that were not pursued. Plaintiff was injured when she fell from the grating of a seeding machine as it was being pulled by a tractor in the process of seeding a new cricket field for the New York City and New York City Parks Department. The court found that she had no basis for the malpractice action since the accident did not occur in the context of work being performed on buildings or structures under §240(1). Similarly, the court found no basis for her potential §241(6) claim since she was not involved in construction, excavation, or demolition work, and no validity to her §200 claim since neither the City nor The Parks Department had the authority to control the plaintiff’s work.
Practice Note: To state a cause of action for legal malpractice, the plaintiff must allege that (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) that the attorney’s beach of duty proximately caused the plaintiff actual and ascertainable damages.
Topics: Authority to Control Work; Elevation Related Hazard
Jardin v. A Very Special Place, Inc.138 A.D. 3d 927 (2d Dept. 2016)April 20, 2016
Plaintiff was injured when he fell from an unsecured ladder while he was trying to reach the roof at a construction site. The court upheld the denial of the plaintiff’s §240(1) motion holding that the while the plaintiff had submitted evidence that the unsecured ladder shifted, causing him to fall, the owner and general contractor raised the triable issue as to whether the plaintiff was authorized to be at the renovation site and whether anyone had instructed the plaintiff to access the roof.
Practice Note: The court noted that while an order of preclusion prohibited the plaintiff’s employer from submitting any affidavits in the matter, the court considered the affidavit of the employer when offered on behalf of the general contractor and owner.
Topics: Elevation Related Hazard; Unsecured Ladder
Kolari v. Whitestone Constr. Corp.138 A.D.3d 1070 (2d Dept. 2016)April 27, 2016
Plaintiff was injured when he stepped into an uncovered drain on the roof of a building and fell. The exposed drain was 12 inches wide and 6 inches deep. The court held that there is a question of fact as to whether the general contractor caused or had notice of the exposed drain and refused to dismiss plaintiff’s Labor Law §200 claim. The court further ruled that the contractor could not establish that the condition was an ordinary and obvious hazard of his employment.
Practice Note: Labor Law §200 codifies the common law duty to maintain a safe work site; and where a plaintiff’s injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable in common law negligence; and under §200 if it either created the condition or had notice of it.
Topics: Manner and Methods; Ordinary and Obvious Hazard; Dangerous Condition on Premises
9Labor Law Update | Summer 2017
SECOND DEPARTMENT
Ramirez v. I.G.C. Wall Sys., Inc.140 A.D.3d 1047 (2d Dept. 2016)June 22, 2016
Plaintiff fell from a makeshift ladder, constructed by the general contractor, while carrying a heavy drill. The court denied the property owner’s motion to dismiss the matter under the homeowner’s exemption since the owner, who was also an officer of the general contractor for the project, was involved in the construction, assembly, and placement of the makeshift ladder and instructed workers to use it. The owner also performed some of the work himself, coordinated the subcontractors, and was eight to ten feet from the plaintiff when he fell. The court further granted the plaintiff’s §240(1) motion holding that the ladder jerked causing him to fall.
Practice Note: The court noted that testimony from witnesses stating that they had used the same ladder during the weeks leading up the accident was insufficient to refute the plaintiff’s testimony that it was unstable at the time of the accident.
Topics: Unsecured Ladder; One- to Two-Family Dwelling Exemption
Batzin v. Ferrone140 A.D. 3d 1102 (2d Dept. 2016)June 29, 2016
Plaintiff was injured while using a table saw to perform renovation work at a residential home in East Hampton that the owner intended to renovate and resell for a profit as he had done with fifteen prior homes. The court denied the owner’s attempt to dismiss the matter pursuant to the homeowner exemption under §240(1) and §241(6). While the owner testified that he intended to live in the home for two to four years before reselling it, he did not live in the house at any time before the accident, and many materials for the job were shipped directly to the home in the owner’s name and contractor invoices were directed to the owner. Moreover, approximately four months after moving into the home, the owner listed it for sale.
Practice Note: The one- to two-family homeowner exemption was not intended to insulate owners from liability who use their one- to two-family homes purely for commercial purposes. Moreover, when the one- to two-family property serves both residential and commercial purposes the exemption may apply based on the nature of the site, the purpose of the work being performed, and the owner’s intentions at the time of the injury.
Topics: One- to Two-Family Dwelling Exemption; Property Owner
Baugh v. New York City Sch. Constr. Auth.140 A.D.3d 1104 (2d Dept. 2016)June 29. 2016
Plaintiff was injured when he fell from an unsecured ladder with no safety devices provided by the property owners. The court held that although a fall from a ladder itself was not sufficient to impose liability under §240(1), the owners would be liable since the evidence showed that although the plaintiff was provided with a ladder as required by the statute, the ladder was not secured so as to prevent him from falling.
Practice Note: The court refused to consider the owners’ claim that the plaintiff’s alleged misuse of the ladder was the sole proximate cause of the accident since there was only one ladder and no additional safety devices were provided.
Topics: Unsecured Ladder; Sole Proximate Cause; Defective or Inadequate Safety Device
10 Labor Law Update | Summer 2017
SECOND DEPARTMENT
Ramirez v. I.G.C. Wall Sys., Inc.140 A.D.3d 1047 (2d Dept. 2016)June 22, 2016
Plaintiff fell from a makeshift ladder, constructed by the general contractor, while carrying a heavy drill. The court denied the property owner’s motion to dismiss the matter under the homeowner’s exemption since the owner, who was also an officer of the general contractor for the project, was involved in the construction, assembly, and placement of the makeshift ladder and instructed workers to use it. The owner also performed some of the work himself, coordinated the subcontractors, and was eight to ten feet from the plaintiff when he fell. The court further granted the plaintiff’s §240(1) motion holding that the ladder jerked causing him to fall.
Practice Note: The court noted that testimony from witnesses stating that they had used the same ladder during the weeks leading up the accident was insufficient to refute the plaintiff’s testimony that it was unstable at the time of the accident.
Topics: Unsecured Ladder; One- to Two-Family Dwelling Exemption
Batzin v. Ferrone140 A.D. 3d 1102 (2d Dept. 2016)June 29, 2016
Plaintiff was injured while using a table saw to perform renovation work at a residential home in East Hampton that the owner intended to renovate and resell for a profit as he had done with fifteen prior homes. The court denied the owner’s attempt to dismiss the matter pursuant to the homeowner exemption under §240(1) and §241(6). While the owner testified that he intended to live in the home for two to four years before reselling it, he did not live in the house at any time before the accident, and many materials for the job were shipped directly to the home in the owner’s name and contractor invoices were directed to the owner. Moreover, approximately four months after moving into the home, the owner listed it for sale.
Practice Note: The one- to two-family homeowner exemption was not intended to insulate owners from liability who use their one- to two-family homes purely for commercial purposes. Moreover, when the one- to two-family property serves both residential and commercial purposes the exemption may apply based on the nature of the site, the purpose of the work being performed, and the owner’s intentions at the time of the injury.
Topics: One- to Two-Family Dwelling Exemption; Property Owner
Baugh v. New York City Sch. Constr. Auth.140 A.D.3d 1104 (2d Dept. 2016)June 29. 2016
Plaintiff was injured when he fell from an unsecured ladder with no safety devices provided by the property owners. The court held that although a fall from a ladder itself was not sufficient to impose liability under §240(1), the owners would be liable since the evidence showed that although the plaintiff was provided with a ladder as required by the statute, the ladder was not secured so as to prevent him from falling.
Practice Note: The court refused to consider the owners’ claim that the plaintiff’s alleged misuse of the ladder was the sole proximate cause of the accident since there was only one ladder and no additional safety devices were provided.
Topics: Unsecured Ladder; Sole Proximate Cause; Defective or Inadequate Safety Device
11Labor Law Update | Summer 2017
THIRD DEPARTMENT
Feilen v. Christman135 A.D. 3d 1130 (3d Dept. 2016)January 14, 2016
Plaintiff fell off the roof sustaining injuries. Court dismissed plaintiff’s Labor Law §240(1) claim on the homeowner’s exemption. Defendant’s property consisted of a barn and a two story “salt box” house. There was only one room on the entire premises that was rented as a sleeping unit for a bed and breakfast and that room was located in a renovated portion of the barn. The roof work was limited to the house. Defendant owned and lived at the premises, testifying that it was her full-time residence and the second floor was totally off limits to guests. Guests were served break-fast on the first floor where the kitchen was located. The court held that the fact that defendant took business calls in the house did not establish that the house was primarily commercial. Although the house had a mixed purpose, the roof work on the house was directed at preserving the integrity of the structure itself and primarily benefited the owner’s residential use of the premises.
Practice Note: The homeowners’ exemption can still be applied to a mixed residential and commercial property depending on specific facts of the case. Just because a homeowner also uses their residence for a business purpose does not defeat the application of the homeowners’ exemption.
Topics: One- to Two-Family Dwelling Exemption; Property Owner
Hebbard v. United Health Servs. Hosps., Inc.135 A.D.3d 1150 (3d Dept. 2016)January 14, 2016
Plaintiff was assigned to move scaffolding frames from a stacked pile and place them into groups of twenty to be bound together and removed from the worksite. As he attempted to move one of the frames, another toppled onto him. The frames were uniform in size at about six feet by four or five feet with an estimated weight of 45 to 50 pounds. The court dismissed plaintiff’s Labor Law §240(1) claim. The court found that there was no elevation differential between the plaintiff and the falling scaffolds as plaintiff was six feet tall and the frames were about his same height and located on his same level. The court refused to deny plaintiff §241(6) claim as Industrial Code 23-2.1(a)(1) applied to the facts of this case. Specifically, the term “material” is not defined by the regulations or established by case law, and thus it is appropriate to consider the dictionary definition of material which would include disassembled scaffolds as well as a sensible understanding that a material pile of scaffold frames should be stable.
Practice Note: The court noted that a plaintiff cannot sustain a Labor Law 240(1) case when the falling object and the plaintiff are on the same level and there exists no height differential.
Topics: Falling Object; Gravity-Related Risk; Industrial Code Violations
Van Wormer v. Watkins Glen Props., LLC140 A.D. 3d 1378 (3d Dept. 2016)June 9, 2016
Plaintiff fell from an extension ladder provided to him by defendant. The court found that there was no evidence that the subject ladder slipped, failed, or collapsed. Rather, the plaintiff’s un-witnessed fall occurred when he was climbing down empty-handed and misjudged the location of a step that had one rung instead of two. Defendant met its prima facie burden that plaintiff was provided with an adequate safety device and that no violation was committed. Plaintiff failed to raise an issue of fact insofar as he failed to submit expert proof to call the defendant’s engineer’s findings into question and his own account of events gave no reason to believe that this fall was in anyway related to the adequacy or placement of the ladder. The court similarly dismissed the plaintiff’s Labor Law 241(6) claim on the basis that defendant’s expert opined that the ladder complied with all safety regulations.
Practice Note: Ordinarily where a worker has been provided with a safety device such as a ladder, the issue of whether the device afforded proper protection can be a question of fact, However, in this case, plaintiff failed to rebut defendant’s expert testimony and his own testimony gave no reason for the fall.
Topics: Gravity-Related Hazard; Defective or Inadequate Protection; Failure to Provide Protection; Sole Proximate Cause; Ladder
12 Labor Law Update | Summer 2017
THIRD DEPARTMENT
Wright v. Ellsworth Partners, LLC143 A.D.3d 1116 (3d Dept. 2016)October 20, 2016
Plaintiff was instructed by his supervisor to go to the fourth floor of a building to assist in cleaning up the site. Plaintiff’s co-workers had been dismantling and stacking scaffolding frames. After 10 to 15 scaffolding frames had been stacked, a row of scaffolding fell forward and struck the plaintiff. The court denied plaintiff’s Labor law §240(1) claim. Although plaintiff established the existence of an elevation differential by showing that the scaffold frames were about six feet tall and were higher than him, there were issues of fact as to whether plaintiff’s injury arose from the elevation differential. The court noted that it had to consider not only the elevation differential but also the weight of the falling object and the amount of force it generated. Here, the record was void of plain-tiff’s height and there were issues of fact as to the number of scaffolds stacked that collapsed, the weight of each scaffold and the manner in which it struck the plaintiff.
Practice Note: Courts will consider the weight of the object coupled with the amount of force that the object is capable of generating over a short descent to determine whether elevation differential is de minimis.
Topics: Falling Objects; Gravity-Related Hazard
13Labor Law Update | Summer 2017
FOURTH DEPARTMENT
Alati v. Divin Bldrs., Inc.137 A.D.3d 1577 (4d Dept. 2016)March 18, 2016
Plaintiff, an independent contractor, was injured while installing a light fixture in a residence being built by defendant when an A-frame ladder he was on collapsed. At the time of the incident, plaintiff was leaning over the top of the ladder while another contractor was handing him a screw from the other side. Plaintiff testified that the subcontractor had stepped on the support “rungs” on the back of the ladder. The subcontractor testified that the ladder collapsed when plaintiff leaned over the top of it. The court granted plaintiff’s motion and denied defendant’s cross-motion for summary judgment on plaintiff’s Labor Law §240(1) claim holding that regardless of the cause of the ladder’s collapse, its collapse established that the ladder did not provide plaintiff adequate protection. The subcontractor’s alleged act of stepping on the back portion of the ladder was deemed to be not of an extraordinary nature or so attenuated from the statutory violation to be a superseding cause. The court dismissed plaintiff’s common law negligence and §200 claims as defendant exercised no supervisory control over the injury-producing work, and the accident occurred as a result of plaintiff’s means and methods of work. Plaintiff’s §241(6) claims were dismissed, except for those premised on alleged violations of 12 NYCRR 23-1.21 (b) (1) and (3) (iv), as those regulations have been held to be sufficiently specific to support a violation of section 241(6).
Practice Note: The court rejected defendant’s recalcitrant worker defense, premised on plaintiff being aware that a scaffold was available, as the court held that even if plaintiff was aware, there is no evidence that plaintiff was aware that he was supposed to use the scaffolding and yet chose not to do so, or that a scaffold would have been an appropriate safety device for the work being done by plaintiff when he sustained his injury.
Topics: Defective or Inadequate Protection; Means & Methods; Supervisory Control
King v. Malone Home Bldrs., Inc.137 A.D.3d 1646 (4d Dept. 2016)March 25, 2016
Plaintiff was injured when he fell through an open, unfinished stairwell while performing framing work on a residence. The court granted plaintiff’s motion to strike defendant’s affirmative defense based on the workers’ compensation exclusivity provisions. The court held that the defendant was collaterally estopped from claiming plaintiff was its special employee because the issue had been decided by the Workers’ Compensation Board. The court noted that defendant had a full and fair opportunity to contest that issue, and the Board’s decision was final and conclusive. Additionally, the court granted plaintiff’s motion for summary judgment on the issue of liability under Labor Law §240(1) because he established that he was injured while working at a building that was under construction, he fell through an open, unfinished stairwell; he was not provided with any safety devices to prevent or break his fall; and defendant did not establish that plaintiff was the sole proximate cause of the accident. Practice Note: It is important to remember that a determination of employment status made by the Workers’ Compensation Board can have a preclusive effect in a subsequent personal injury action, and can have collateral estoppel effect where the issue is identical to a material issue that was decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal.
Topics: Defective or Inadequate Protection; Workers’ Compensation
14 Labor Law Update | Summer 2017
FOURTH DEPARTMENT
Maddex v. E.E. Austin & Son, Inc.137 A.D.3d 1717 (4th Dept. 2016) March 25, 2016
Plaintiff was injured when he and two coworkers tried to unload a 500-pound gang box at a jobsite from a “cube van.” Plaintiff stayed inside the van and held a handle of the gang box to act as a counterweight as his coworkers lowered it to the ground, five feet below the bed of the van. The gang box slid to the pavement, flipped over and propelled plaintiff out of the van approximately 15 feet and onto the pavement. At trial, at the close of his proof and after a defense verdict was rendered, plaintiff unsuccessfully moved for a directed verdict on his Labor Law §240(1) claim on the basis that defendant failed to provide proper safety devices. The court found that plaintiff’s motions had been properly denied. Although it found that plaintiff’s accident was caused by the effects of gravity, issues of fact were presented as to the availability of safety devices. The court further held that it would not disturb the jury’s credibility determinations made at trial.
Practice Note:Although the court held that plaintiff’s accident was a gravity-related accident and therefore subject to §240(1), difering testimony as to the availability of safety devices precluded plaintiff from obtaining summary judgment.
Topics: Gravity-Related Hazard; Defective or Inadequate Protection; Failure to Provide Protection
Nicholas v. Wal-Mart Stores, Inc.137 A.D.3d 1733 (4th Dept. 2016)March 25, 2016
The court upheld dismissal of plaintiff’s Labor Law §200 and common law negligence claims against the property owner. Without describing the facts of the case, the court noted that where a worker’s injuries result from a dangerous condition at the job site rather than from the manner in which the work is performed, a general contractor or owner may be liable in common law negligence and under §200 if it has control over the work site and created or has notice of the dangerous condition. The court found that the owner was entitled to summary judgment. However, the general contractor failed to establish that it did not control the work site or that it lacked actual or constructive notice of the alleged condition.
Practice Note: When a plaintiff’s accident is caused by a dangerous condition on the premises, the defendant has to establish that it did not control the work site and that it lacked notice of the alleged dangerous condition.
Topics: Actual or Constructive Notice of Dangerous Conditions; Authority of Control Over Work; Common Law Negligence
St. John v. Westwood-Squibb Pharm., Inc.138 A.D.3d 1501 (4th Dept. 2016) April 29, 2016
Plaintiff slipped/tripped on debris while attaching lighting equipment to a pickup truck. The lighting equipment was for use in a project to rehabilitate several bridges on a public roadway. The accident occurred in a parking lot that was owned by defendant and was adjacent to the public roadway. It was being used as a staging area for the project by plaintiff’s employer, who leased the parking lot from defendant’s parent corporation, a non-party. Defendant sought dismissal of plaintiff’s Labor Law §241(6) claim on the basis that plaintiff was not entitled to protection under the Labor Law and because it was not an owner. The court held that the protections of the Labor Law extend to areas where materials or equipment are being readied for use, as was the case on this project. The court further held that there were issues of fact as to whether defendant was an owner pursuant to the Labor Law as defendant failed to establish that the lease between its parent corporation and plaintiff’s employer did not create a sufficient nexus between defendant and plaintiff to subject it to liability. The court further denied defendant’s motion for summary judgment on plaintiff’s common law negligence and Labor Law §200 claims as defendant did not establish that it lacked constructive notice of the alleged dangerous condition. The court also noted that although defendant claimed to be out of possession of landlord, it failed to establish that it did not retain sufficient control over the property to be liable.
15Labor Law Update | Summer 2017
FOURTH DEPARTMENT
Practice Note: Where an accident is alleged to involve both a dangerous condition on the premises and the “means and methods” of the work, a defendant moving for summary judgment is obligated to address the proof applicable to both liability standards.
Topics: Actual or Constructive Notice of Dangerous Conditions; Application of Labor Law; Industrial Code Violations
Cullen v. AT&T, Inc.2016 N.Y. App. Div. LEXIS 4398; 2016 NY Slip Op. 04503 (4th Dept. 2016)June 10, 2016
Plaintiff was called to investigate and remedy an alarm on a cell phone tower that indicated the tower was not working. After confirming that a tower-mounted amplifier needed to be replaced, plaintiff slipped as he was attempting to climb back onto a boom. The slings latched around his wrists and injured plaintiff. Plaintiff and defendant moved for summary judgment on plaintiff’s Labor Law §240(1) claim. The court found that plaintiff was engaged in a repair, and not routine maintenance, and thus was entitled to protection under the Labor Law. The court held however, that issues of fact prevented the granting of plaintiff’s motion. The court noted that defendant’s expert witness raised an issue of fact as to whether the safety devices provided proper protection, and whether the absence of additional safety devices was a proximate cause of plaintiff’s injuries.
Practice Note: Labor Law §240(1) only provides protection to certain enumerated activities, which does not include routine maintenance. However, plaintiff here was deemed to be engaged in a repair, not routine maintenance.
Topics: Application of Labor Law; Routine Maintenance
Pearson v. Wallace2016 NY App. Div. LEXIS 4714; 2016 NY Slip Op.04822 (4th Dept. 2016) June 16, 2016
Plaintiff was allegedly injured when a ladder he was on was struck by the chute of a cement truck, causing him to fall. Plaintiff sought summary judgment on his Labor Law §240(1) against the general contractor and property owner. The court found that although plaintiff satisfied his burden of establishing that defendants failed to ensure proper placement of the ladder and that was a proximate cause of his accident, defendants raised an issue of fact by providing a different version of how the incident occurred. Defendants also raised a question of fact as to whether plaintiff’s own conduct was the proximate cause of the accident. Plaintiff had apparently been warned not to perform work in the area while cement was poured and the general contractor had moved his ladder away from the area and specifically directed plaintiff to leave the area. Plaintiff nonetheless disregarded the instructions, retrieved the ladder, and continued working in the area.
Practice Note: To raise an issue of fact as to whether a plaintiff was the sole proximate cause of an accident, defendants must demonstrate that an adequate safety device was available, that plaintiff knew that they were available and was expected to use them, and plaintiff unreasonably chose not to do so causing his own injury.
Topics: Defective or Inadequate Protection; Sole Proximate Cause
Vol. 18 No. 6
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Goldberg Segalla’s Labor Law Update keeps clients informed about significant changes and cases involving New York’s Labor Law. If you have any questions about cases reported in this Labor Law Update or questions concerning Labor Law §§200, 240(1), and 241(6) in general, please contact Ellen Greiper.
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LABOR LAW UPDATE | SUMMER 2017
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