In Mayo v. Metropolitan Opera Association, Inc., a subcontractor’s employee was injured while repainting the steel carriage rail for the Metropolitan Opera House’s automated window-washing system.  In order to access the steel carriage rail, the plaintiff testified that he had to climb a ladder located on the sixth floor of the Opera House and exit onto the roof through a hatch door in the ceiling.  Apparently, the hatch door was easy to open but difficult to close because of a broken hinge and required two hands to close it.  While attempting to close the hatch with two hands, the plaintiff fell from the ladder and was injured.  Both the Met and Lincoln Center moved for summary judgment on the plaintiff’s Labor Law § 240(1) claim.  Furthermore, Lincoln Center argued that the plaintiff’s Labor Law §200 and common-law negligence claims should be dismissed because it did not create or have any notice of a defect in the hatch door.

The Appellate Division’s opinion turned on the testimony by Lincoln Center’s chief engineer, who had opened and closed the hatch more than 100 times and testified that in order to close the hatch, a worker had to break three-point contact with the ladder and somehow wedge his body up against the concrete side of the hatch to safely reach up with both hands to close the door.  Ultimately, the court held that both the plaintiff’s testimony about the difficulty of reaching the roof, coupled with the chief engineer’s testimony demonstrated that the Met and Lincoln Center failed to provide adequate safety devices to protect the plaintiff from the risks associated with gaining access to the Opera House roof and steel carriage rail.  Additionally, the chief engineer’s testimony created a question of fact as to whether Lincoln Center had notice of the defect in the hatch door.

As an aside, while Lincoln Center’s counsel did not move for summary judgment on an out-of-possession landlord theory, they did attempt to raise the defense on appeal.  While the Appellate Division declined to consider the defense, it stated that even if it had, the chief engineer’s testimony would have been enough to create a question of fact as to whether Lincoln Center knew of a significant structural or design defect that was contrary to a specific statutory safety provision.

Special thanks to Michael Nunley for his contributions to this post.  For more information, please contact Nicole Y. Brown at .