A construction manager is free from liability under Labor Law §§§ 200, 240(1) and 241(6), if it does not undertake supervisory control over a construction contractor’s means or methods of work and if it is not authorized to stop the work if their personnel observed an unsafe practice.
In DaSilva v. Haks Engineers, Architects and Land Surveyors, P.C., et al., plaintiff, a construction worker employed by nonparty Yonkers Contracting, Inc., was injured when, while working on the construction of the Croton Falls Dam, a project undertaken by nonparty Department of Environmental Protection (DEP), the plank of the scaffold he was standing on shifted, causing him to fall to the concrete below.
Before the work began, the DEP entered into a construction management services contract (CMS) with the defendants which outlined project management responsibilities including, reviewing the health and safety plans of contractors, as well as developing and implementing an overall Health and Safety Plan addressing activities associated with existing on-site conditions. But, the CMS specifically stated that “the [construction manager] will not supervise, direct, control or have authority over or be responsible for each contractor’s means, methods, techniques, sequences or procedures of construction or the safety precautions and programs incident thereto. If it became apparent that the means and methods of construction proposed by the construction contractors would constitute or create a hazard, then the construction manager was required to notify the Commissioner, or . . . his/her duly authorized representative.”
The defendants established that under the CMS they were not obligated to exercise supervisory control over the construction contractor’s means or methods of work, nor did they assume such responsibility. The court held that general supervisory duties are insufficient to form a basis for the imposition of liability under Labor Law § 200.
Further, as the CMS did not confer upon the construction manager the right to exercise supervisory control over the individual contractors, nor were defendants authorized to stop the work if their personnel observed an unsafe practice, the court held that the defendants also established that they were not the property owner’s statutory agent for purposes of Labor Law §§ 240(1) or 241(6) such that they should be held vicariously liable for plaintiff’s injuries. The construction manager was only obligated to notify the project owner or its duly authorized representative of such a situation.
Thanks to Johan Obregon for his contribution.