Labor Law 240(1) Does Not Apply To Scaffold Accident Where Fall Was Caused by Separate Hazard (NY)
New York Labor Law section 240, the so called “Scaffold Law”, imposes strict liability on property owners and contractors where a construction worker sustains an elevation-related injury. However, section 240 does not apply to all worksite hazards and courts will examine the specific facts to determine if the section will apply. For example, in Krarunzhiy v. 91 Cent. Park W. Owners Corp., the Appellate Division, Second Department addressed the issue of whether a defendant owner violated Labor Law 240(1) when plaintiff fell while working in the defendant’s building. At the time of the accident, plaintiff was working as a mason and painter, and fell over a rug as he descended a temporary staircase from an upper to a lower scaffold. The trial court awarded summary judgment to the defendant. The Second Department affirmed, holding that Section 240(1) did not impose liability under the circumstances. The Court observed that “[T]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards and do ‘not encompass any and all perils that may be connected in some tangential way with the effects of gravity.'” The Court added that the “core objective of the statute in requiring protective devices for those working at heights is to allow them to complete their work safely and prevent them from falling. Where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no section 240(1) liability exists.” Give these principles, the Court held that the owner established that plaintiff’s injury was unrelated to the need for a safety device, and that there was no indication that the scaffold stairs did not allow him to “safely complete his work at a height.” The deficiency with the device “did not interfere with or increase the danger of injury in the performance of his elevation-related task” and therefore plaintiff’s Labor Law 240(1) claim against the owner was dismissed. This decision serves as a reminder that not all elevation-related falls on a construction site will trigger section 240 liability. When defending a Labor Law 240(1) claim, defendants should investigate if a plaintiff’s fall was from a hazard that is unrelated to the plaintiff’s risk. Thank you to Corey Morgenstern for his contribution to this post. Should you have any questions, please contact Andrew Gibbs.Read MoreWhat Is A Passageway Under NY Labor Law?” (NY)
When a plaintiff alleges a Labor Law 241(6) predicated upon a New York City Rules & Regulations code, the plaintiff must establish a prima facie case that the NYCRR is violated. For example, in Stewart v. Brookfield Off. Props. Inc., 2023 NY Slip Op 00226 (2d Dep’t January 18, 2023), the plaintiff allegedly fell at a construction site while installing a lighting fixture. Plaintiff subsequently commenced a lawsuit against the defendant and depositions were conducted. Plaintiff testified at his deposition that he stepped off of a ladder and immediately tripped on a raised portion of the concrete floor. Thereafter, defendants moved for summary judgment arguing that there was no labor law violation because the plaintiff’s injury did not occur on a passageway, which is a predicate to proving a violation. 12 NYCRR 23-1.7(e)(1), which requires owners and general contractors to keep all passageways free of obstructions which could cause tripping, is inapplicable because the site where the plaintiff allegedly tripped was not a passageway. Specifically, the Court stated, “In order to establish liability under Labor Law § 241(6), a plaintiff must “establish the violation of an Industrial Code provision which sets forth specific safety standards,” and which “is applicable under the circumstances of the case.” The lower court held, and the second department recently affirmed, that the defendant’s established the plaintiff’s injury did not occur in a passageway and therefore, there was no NYCRR violation. Accordingly, summary judgment was granted to the defendant. Thanks to Lauren Howard for her contribution to this article. Should you have any questions, contact Matthew Care.Read MorePlaintiff Failed To State A Claim For Alleged Workplace Assault (NY)
Plaintiff, a staff accountant, complained to her employer of workplace safety violations following an alleged physical assault by a co-worker. Defendant employer terminated plaintiff shortly after her allegation, and plaintiff filed suit, through counsel, alleging that defendant employer terminated her in retaliation for her workplace safety complaints in violation of Labor Law §§ 215 and 740. Defendant moved to dismiss the complaint for failure to state a cause of action. The Supreme Court dismissed the complaint.
The First Department in Sakthivel v. Industrious Staffing Company, LLC, 2021-01142, affirmed the lower court’s dismissal of the complaint on two grounds. First, although plaintiff, proceeding pro se on appeal, premised her Labor Law claim on an alleged violation of workplace safety, Labor Law § 200 codifies the common-law duty upon an owner or general contractor to provide a safe worksite for construction workers. Staff accountants like plaintiff are not among the class of workers protected by the Labor Law. Thus, plaintiff could not rely on Labor Law § 200 for her § 215 claim.
Next, the First Department affirmed a previous decision that the alleged co-worker assault did not raise a claim under § 740 as it did not constitute “an activity, policy, or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.”
Thanks to Abed Bhuyan for this post. Please contact Abed with any questions.
Read MoreSJ Granted In Face Of Conclusory Defendant Affidavit On Labor Law Claim (NY)
This week the First Department, Appellate Division, in Castillo v. TRM Contracting 626 LLC, et al., 2022-00671, affirmed a worker’s partial motion for summary judgment on Labor Law § 240(1) liability.
While attempting to cover a window with plastic before starting to paint, plaintiff proved that he fell from an unsecured, 6-to-8-foot-tall A-frame ladder that was in poor condition and leaning against a wall in a closed position because of obstructions at the work site, namely, large boxes preventing him from fully opening the ladder. This established a violation under Labor Law § 240(1) because the workplace conditions prevented a worker from placing the ladder in an open, secure position, causing the worker injury because the ladder shifted, slipped, or collapsed.
The Court faulted defendants for their failure to raise an issue of fact through an affidavit from defendant’s principal, holding that that affidavit was conclusory and did not cite any facts describing the location of plaintiff’s accident, did not show that the principal was aware of where plaintiff had been working, and did explain how plaintiff could have opened the ladder and properly secured it in the work area. Moreover, the competing affidavit did not deny plaintiff’s testimony that he was not allowed to move the boxes.
The Court also rejected defendants’ argument that plaintiff’s partial motion was premature because defendants did not prove that the foreman, whose deposition defendants wanted to take but had never noticed, would provide relevant testimony as he was not present to supervise plaintiff the day of the accident.
Thanks to Abed Bhuyan for his contribution to this post. Please contact Heather Aquino with any questions.Read MoreDoes The Homeowners Exemption Under The Labor Law Extend To A Detached Garage On A Separate Lot? (NY)
New York Labor Law Sections 240 and 241 give workers the right to sue for construction accidents and can impose strict liability on contractors and property owners who violate these sections. Both sections contain exemptions for “owners of one and two-family dwellings who contract for but do not direct or control the work.” In Rendon v. Callaghan, the Appellate Division, Second Department recently addressed whether this exemption extends to a detached garage on a separate lot. In Rendon , the plaintiff was allegedly injured when part of a detached garage roof he was repairing collapsed. The defendant’s premises had two adjacent lots that had separate addresses and were taxed separately. The garage was on one lot and the defendant’s home was on the other. Plaintiff sought recovery under common-law negligence and Labor Law §§ 200, 240 (1), and 241 (6). The trial court granted defendant’s motion for summary judgment under Labor Law §§ 240 (1) and 241 (6), determining she did not direct or control the work being performed and was entitled to the homeowners’ exemption contained in those provisions. Furthermore, the defendant established the work was performed at a residence for only one or two families. The Third Department affirmed, finding that defendant demonstrated her prima facie entitlement to judgment as a matter of law dismissing the causes of action against her. In making its determination, the Court considered the ‘site and purpose’ test to determine if the homeowners’ exemption applied. The work being performed by the plaintiff was related to the residential use of the defendant’s home and she did not direct or control the work; regardless of whether the garage was on a legally separate lot from the defendant’s home. The Court observed that the garage was an extension of the dwelling, the repairs had a substantially residential purpose, and the two lots were treated as one lot. As to the common-law negligence and Labor Law § 200 claims, the Court found that the defendant did not create the dangerous condition or have actual or constructive notice of the condition, namely, the structural deficiency in the garage roof. The Court considered whether the presence of a leak was sufficient actual or constructive notice of a structural deficiency but found that such a condition was latent and not discoverable upon reasonable inspection. The Rendon case serves as a reminder that New York courts will typically avoid a rigid interpretation of the homeowners’ exemption under the Labor Law, and that the exemption does apply to a detached garage satisfying the flexible ‘site and purpose’ test. Please contact John Diffley with any questions.Read MoreA Lift Is Not A Safety Device In NY Labor Law
In Carlson v. Tappan Zee Constructions, LLC., et al. Index No. 58719/2019, the Hon. Damaris E. Torrent denied a plaintiff’s motion for summary judgment on the issue of liability under Labor Law §240(1). Plaintiff was working on an aerial boom lift attached to a barge when the wakes of two passing boats had caused the barge to rock. As a result, the lift platform swung and crashed into a concrete tower, causing plaintiff to be tossed about inside the basket on top of the lift. It was undisputed that plaintiff did not fall and that no object fell. Plaintiff argued that the subject lift was a safety device within the meaning of Labor Law § 240(1), which required the lift to be constructed, placed, and operated to provide proper protection, and the lift failed to meet this standard. He further agued the fact he did not fell, or nothing fell on him was immaterial to establish a § 240(1) claim; his injuries were a direct result of the application of the force of gravity. In opposition, defendants argued that plaintiff’s accident was not the type contemplated by the statute, and the statute was not intended to address every injury which occurs while a worker is working at a height. While the Court acknowledged it has been held a fall is not required under § 240(1), the Court still denied plaintiff’s motion for summary judgment, finding that plaintiff at all times remained secured inside the basket and there was no contention the lift failed to operate as intended. Additionally, plaintiff failed to establish that large boats speeding was a foreseeability risk inherent in the work he was performing at the time of the accident. This case demonstrates that a hazard unrelated to the elevation risk is not sufficient to bring a § 240(1) claim. Thanks to Gina Rodriguez for her contribution to this article. Should you have any questions, contact Matthew Care.Read MoreDuty to Defend Triggered with a “reasonable possibility” of Coverage (NY)
The Appellate Division (4th Dep’t) recently determined that even where a complaint does not include specific claims or allegations bringing it within the scope of a policy’s coverage, an insurer’s duty to defend may still be triggered if the complaint suggests a “reasonable possibility” that the claims may fall within the scope of the policy. In Main St. Am. Assurance Co. v. Merchants Mut. Ins. Co., the Court addressed this issue in a case involving a plaintiff who was injured during the course of his work as a subcontractor on a construction project. The subcontractor obtained insurance through Merchants Mutual Insurance Company for the contractor’s benefit. The policy with Merchants Mutual provided coverage to the contractor, but “only with respect to liability for ‘bodily injury’ . . . caused, in whole or in part, by . . . [insured’s] acts or omissions.” Merchants Mutual argued it did not have a duty to defend the contractor because the complaint alleged Labor Law violations on the part of the contractor, and not negligence by the subcontractor, as contemplated by the policy. The Appellate Division disagreed with Merchants Mutual, holding that even though the underlying complaint did not allege negligence by the subcontractor, it suggested a reasonable possibility that its negligence was a proximate cause of his injuries, thereby bringing the claim potentially within the policy. Accordingly, the Court held, Merchant Mutual’s duty to defend the contractor as an additional insured was triggered, despite the fact that the complaint did not actually allege that subcontractor had been negligent. This decision is somewhat troubling for insurers as it shows that a court may find a duty to defend even where the underlying complaint did not specifically include claims or allegations falling within the scope of a policy’s coverage. Thanks to Erin Gallagher for her contribution to this post. Should you have any questions, please feel free to contact Tom Bracken.Read MoreSummary Judgment Without Deposition discovery Permitted In NY Labor Law Case
Courts often deny early summary judgment motions on the basis that they are premature pending completion of discovery on the issues in dispute. In Lapota v. PPC Commercial, LLC, the Appellate Division, First Department took a different approach in examining a trial court’s decision to deny plaintiff’s early motion for summary judgment as to his Labor Law §240 (1) claim against the defendant. The Court based its determination on affidavits of the plaintiff and his co-worker which stated that plaintiff’s accident occurred when an unstable ladder he was using, which was missing rubber feet, shifted and caused plaintiff to fall. The work performed by the plaintiff was covered under Labor Law section 240 (1). In reversing the lower court’s decision, the First Department rejected defendant’s argument that plaintiff’s motion was premature since depositions had not been taken. The Court reasoned that though depositions were not taken, summary judgment was not precluded since the defendant failed to show that discovery might lead to facts that would support its opposition to the motion and that facts essential to its opposition were exclusively within the knowledge of the plaintiff. The Court did not agree with defendant’s argument that plaintiff’s deposition testimony might further illuminate issues raised by the affidavits. The Court reasoned that mere hope that evidence sufficient to defeat summary judgment may be uncovered during discovery was insufficient to defeat summary judgment. This case serves as a reminder of the vulnerability of defendants under the Labor Law and the importance of conducting prompt discovery in Labor Law cases where the possibility of early motion practice exists. Please contact John Diffley with any questions.Read MoreAbsolute Liability Arising From Violations of NY Labor Law §240 Depends On Exact Scope Of Employment
In Gonzalez v. DOLP 205 Properties II, LLC, 206 A.D.3d 468 (2d Dep’t 2022), the plaintiff construction worker sustained injuries after falling from stilts he was standing on while performing work. Given his injuries stemmed from an elevation-related hazard, the plaintiff claimed the defendant property owner was liable under New York Labor Law § 240(1), and initially prevailed on his summary judgment motion.
On appeal, the Appellate Division, First Department, reversed the Supreme Court’s grant of summary judgment to the plaintiff. In particular, the court pointed to evidence indicating that the plaintiff’s boss explicitly instructed the plaintiff to remain on ground level while performing assigned work. Despite this, the plaintiff claimed that his boss’s assistant instructed him to perform elevated work on the stilts. Thus, the court found the existence of a “triable issue[] of fact as to whether plaintiff’s duties were expressly limited to work that did not expose him to an elevation-related hazard within the purview of Labor Law §240(1).”
The court also noted the significance of the exact chain of command which the plaintiff received directives from on the issue of liability. Since absolute liability under § 240(1) requires a finding that the injury was proximately caused by a failure to provide appropriate safety measures, evidence that the plaintiff proximately caused the accident could preclude liability on the defendant. Here, the court noted the existence of another issue of fact where the plaintiff allegedly asked a third on-site individual for a different pair of non-defective stilts, but it was unclear whether this individual was a superior or merely a co-worker.
This case serves as a useful reminder to attorneys in § 240 cases of the importance of clarifying a plaintiff’s scope of employment and the precise individuals the plaintiff received directives from.
Thanks to Andrew Henriquez for his contribution to this post. Should you have any questions, please contact Tom Bracken.
Read MoreTelephone Pole Owners Not Necessarily Owners Under Labor Law (NY)
In Villalta v. Consolidated Edison Company of New York, Inc., et al, the First Department recently considered the application of Labor Law 240(1) strict liability as it applies to telephone poles. In that matter, the plaintiff was a cable-service repairman who was injured in a fall while inspecting storm-damaged cable equipment. Specifically, he had propped his ladder against a telephone pole owned by Verizon to climb up and inspect the equipment, and then fell.
At the close of discovery plaintiff moved for partial summary judgment on his Labor Law 240(1) claim as against Verizon as the property owner. The motion court denied plaintiff’s motion, and the plaintiff appealed. The First Department held that although a telephone pole is a structure within the meaning of Labor Law 240(1), and plaintiff’s work did constitute repairs and/or alterations within the meaning of Labor Law 240(1), there was no evidence that Verizon was an “owner” of the telephone pole within the meaning of Labor Law 240(1) such that Verizon would be subject to strict liability for the plaintiff’s accident. The First Department further held that there was no evidence that the Verizon had contracted for, directed, controlled, or benefitted from the plaintiff’s work – and therefore the First Department modified the motion court’s decision to dismiss the plaintiff’s claims as against defendant Verizon only.
Thanks to Shira Straus for her contribution to this post. Please contact Heather Aquino with any questions.
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