Wade Clark Mulcahy LLP

When a construction site has an accident and a worker becomes injured, the knee-jerk reaction for plaintiff’s attorneys can be to try to find a way to apply Labor Law §200 and §240(1). Owners, general contractors, and subcontractors should keep in mind that, even when they are placed on the opposite side of a lawsuit against a sympathetic, injured plaintiff, if they don’t meet the specific criteria related to each alleged Labor Law violation, then their chances of failure in potential summary judgment motions rapidly decrease.

For example, in Giraldo v Highmark Ind., LLC, 2024 NY Slip Op 02042 (2d Dep’t April 17, 2024), the plaintiff was injured after he was allegedly hit by a construction machine that was being crane-lifted and moved to a different location. Plaintiff alleged, among other claims, common-law negligence and violations of Labor Law §200 and §240(1) against the owner, general contractor, and crane-owner subcontractor. Plaintiff moved for summary judgment.

The Second Department affirmed the trial court’s denial of plaintiff’s summary judgement motion. Although §240(1) claims are commonly thought of as injuries occurred due to any height or gravity-related differences, the trial court clarified that, “[c]onsequently, the protections of Labor Law §240(1) 'do not encompass any and all perils that may be connected in some tangential way with the effects of gravity'…'Rather, liability [remains] contingent upon the existence of a hazard contemplated in §240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein.'" Although the machine was technically off the ground when it made impact with the plaintiff, the accident was due to their collision, not the height of the machine as it was lifted off the ground.

Regarding plaintiff’s Labor Law §200 claim, the court found that liability can only attach to entities that either controlled plaintiff’s work or parties that should have established a safe place to work (the owner or GC). Since plaintiff was unable to establish that the defendants supervised or controlled the means and methods of Plaintiff’s work on the site, summary judgment was denied. The court also found material issues of fact precluded summary judgment because it was uncertain which allegedly dangerous condition or combination of dangerous conditions proximately caused plaintiff’s accident.

This decision shows the importance of developing and highlighting factual nuances during litigation to successfully defend against Labor Law claims.