A Bridge Too Far – 1st Department Reverses Labor Law § 241(6) Claim Following Construction Accident on Whitestone Bridge (NY)

In James v Alpha Painting & Constr. Co., Inc, the First Department recently adopted a broad interpretation of section 23-8.2(d)(3) of the Industrial Code, which governs “mobile crane travel.”

The case arose from injuries sustained by plaintiffs Darren James and Balthazar Andrade, who were employed by a subcontractor on a project to renovate and repaint the Bronx-Whitestone Bridge. On the date of the accident, they were dismantling a scaffold and loading the materials onto a boom truck – a flatbed truck with a hoist or “boom” affixed to the back. Once they loaded the boom truck, plaintiffs were directed to board the boom truck while it drove the materials to the other side of the bridge. After driving approximately 700 feet, the raised boom struck an overhead road sign and gantry, causing part of the truck to swing into the air and throwing the plaintiffs from the truck onto the roadway, causing severe injuries. Plaintiffs commenced a lawsuit against, inter alia, Alpha Painting and Construction Co., Inc. (Alpha), the general contractor on the project, and GPI, the construction manager, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).

The trial court granted defendants’ motion for summary judgment dismissing the complaint. On appeal, the First Department upheld the dismissal of plaintiffs’ common-law negligence and Labor Law §§ 200 and 240(1) claims. First, the Court held that even though the accident occurred 700 feet away from the job site, it occurred while the truck was “in the process of driving away.” Accordingly, it should be considered part of the site of the purposes of the Labor Law. Secondly, the Court upheld the dismissal of plaintiffs’ Labor Law § 240(1) claim, as the plaintiffs’ injuries were not caused by an elevation-related risk, but by the motion of the truck after the boom struck the overhead road sign. Lastly, the Court held that Alpha put forth prima facie evidence that it only had general supervisory control over the plaintiffs’ work, which the trial court correctly held was insufficient to establish liability under Labor Law § 200 or the common-law.

In terms of plaintiffs’ Labor Law section 241(6) claim, the Court found that issues of fact warranted reversal of the trial court. Specifically, the Court analyzed section 23-8.2(d)(3) of the Industrial Code, which pertained to “mobile crane travel.” Section 23-8.2(d)(3) provided that “[a] mobile crane, with or without load, shall not travel with the boom so high that it may bounce back over the cab.” The Court recognized that in the case at bar, plaintiffs were not injured by the boom bouncing over the cab, but rather, when the boom hit the road sign. However, the Court looked to cases from other Appellate Divisions that held section 23-8.2(d)(3) was violated when a mobile crane has “the boom so high that it may bounce back over the cab.” Accordingly, the Court remanded plaintiffs’ Labor Law section 241(6) claim to the trial court, so that a jury could resolve outstanding factual questions related to the operation of the worksite and which defendant had control over the injury producing work.

Despite the fact that the First Department upheld the dismissal of most of plaintiffs’ claims, it was clearly reticent to refuse plaintiffs their day in court. Here, the dissenting justices noted that the majority went to great lengths to apply section 23-8.2(d)(3) of the Industrial Code – which dealt exclusively with mobiles cranes – to the case at bar, which dealt with a boom truck. To the dissenters, a mobile crane and a boom truck were clearly distinguishable, so the majority was “unconvincing” in its efforts to find factual issues by relying on a regulation that did not even apply. Overall, the majority opinion clearly demonstrates the high bar movants face when seeking summary judgment.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Mason Found to Fabricate Scaffolding Accident (NY)

The Queens County Supreme Court recently tried a case in which plaintiff alleged he fell off a scaffolding, injuring himself in Klimowicz v. Powell Cove Associates LLC et al.

The plaintiff in Klimowicz was a mason and allegedly injured his right shoulder when, while building a brick wall and standing on an elevated scaffold at a construction site, fell through an opening in the scaffold

Plaintiff sued the premises’ owner and two related entities alleging state labor law violations, believing he fell because two boards had been removed from the scaffold’s platform, and because he was not provided the proper safety equipment as required under the statute.

As a result of the accident plaintiff suffered injuries including two arthroscopic surgeries on his shoulder, several courses of physical therapy, residual arthritic pain in shoulder with weakness and diminished range of motion.   Plaintiff ultimately demanded $1,000,000 for both past and future pain and suffering.

The matter went before a bifurcated jury trial, with the issue of liability being first heard by the jury.  The defense attorneys argued that plaintiff completely fabricated the incident to recover for injuries suffered at an independent incident unrelated to the scaffolding.  Defense Counsel noted that during a workers compensation hearing, plaintiff stated his injuries occurred while he was moving building materials.  Defense counsel also noted that in plaintiff’s medical records, plaintiff indicated the injuries occurred while plaintiff was pulling up a heavy plank.   In addition, plaintiff did not immediately report the incident after it was alleged to have happened but waited over a month.

The underlying workers’ compensation file, and persistence by defense counsel and their claim representative, helped to uncover the inconsistencies in plaintiff’s account. Ultimately, the jury rendered a defense verdict, finding that the defendants were not liable for plaintiff’s accident.   Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons with any questions.

Labor Law 240 Applied to Sprinkler Maintenance Contract Where Modifications to System Involved “Significant Physical Change”

Courts keep on expanding the reach of Labor Law 240’s applicability.  Even the sacred “routine inspection and maintenance” work is now expanding.

In Concepcion v. 333 Seventh, LLC, the building hired plaintiff’s employer to “routinely conduct inspections and maintain the building’s sprinkler system.” On May 1, 2015, plaintiff and his helper were at the building to modify the sprinkler to make it code compliant.  The work was performed pursuant to the maintenance contract.  There was no construction or renovation performed in connection with this work. The building’s superintendent directed plaintiff to the fourth floor and provided a 6-foot A-frame ladder. Mike, Plaintiff’s helper held the ladder while plaintiff worked. After the helper left to retrieve a piece of pipe, the plaintiff felt the legs of the ladder move forward causing him to lose balance and fall to the floor.

Defendants moved summary judgment on several grounds, including that Labor Law §240(1) was inapplicable since plaintiff was performing routine maintenance, while Labor Law §240(1) affords protection to workers engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.”

The court found that since plaintiff’s intended work that day included installing wheel assemblies and water flow switches, relocating drain lines and removing old drain lines there was a significant physical change to the building’s sprinkler system, more than routine maintenance. Defendants argued that the plaintiff was performing routine maintenance as required by the service estimate from 2013. The Court found this insufficient to raise a triable issue of fact since the estimate from May 2013 did not specifically mention the work plaintiff was performing on the date of the accident.

This was a lower court decision.  It remains to be seen whether it holds up on appeal.  The case, however, is venued in the First Department, which is notorious for expanding Labor Law 240 application.

Thanks to Hillary Gomez for her contribution to this post.



Sole Fact of a Workplace Fall Falls Short For Labor Law § 240(1) Claim (NY)

The New York Court of Appeals recently reiterated that the fact of a workplace fall alone is insufficient to support a summary judgment under Labor Law § 240(1).  In O’Brien v. Port Authority, the plaintiff, O’Brien, was injured while working for a subcontractor at the 1 World Trade Center construction site.  He brought suit against the Port Authority and the general contractor.

On the date of his fall, O’Brien had been working at ground level during periodic rain.  When he headed down one level to retrieve his raincoat from his shanty, he slipped off the tread of the top step of a temporary exterior metal staircase (also described as a temporary scaffold) and fell down the stairs, sustaining injuries.  The stairs were wet due to exposure to the elements.  In addition, O’Brien testified that the stairs were “steep, slippery and smooth on the edges.”  He also stated that his right hand was on the handrail, but he lost his grip because the handrail was also wet.  Plaintiff submitted an affidavit from a co-worker that stated that the stairs were slippery when wet and the slippery nature of the stairs was common knowledge at the construction site.

Plaintiff also submitted an expert affidavit in support of his motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims.  The expert opined that the stairs were “not in compliance with good and accepted standards of construction site safety and practice” or with OSHA. His expert also opined the stairs were “smaller, narrower and steeper than typical stairs,” making it more difficult to maintain proper footing.  The expert claimed that the stairs showed signs of longstanding wear and tear and lack of adequate anti-slip protection.

In opposition and in support of defendants’ cross-motion, their expert opined the staircase was “designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather.” The defense expert observed that the staircase provided both perforated holes to allow rain to pass through and raised metal nubs for traction, and opined that these anti-slip measures were sufficient. The defense expert also disputed the staircase was smaller, narrower or steeper than usual.

The trial court denied all parties’ motions on the Labor Law § 240(1) claim, finding issues of fact as to whether the temporary staircase provided proper protection. The trial court, however, granted plaintiff summary judgment on his Labor Law § 241(6) claim based on its determination that there was a violation of Industrial Code 12 NYCRR § 23-1.7 (d), which states that “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.”

On appeal, with one judge dissenting, the First Department modified the order by granting plaintiff’s motion on his Labor Law § 240(1) claim and denying him summary judgment on the Labor Law § 241(6) claim. The First Department noted the conflicting expert opinions as to the adequacy and safety of the staircase, but nonetheless held that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling.

The Court of Appeals considered only the Labor Law § 240(1) claim, finding that the First Department improperly found the stairs inadequate on the sole basis that the plaintiff fell – again with one justice dissenting.  The majority of the Court reiterated its clear holding from past decisions that “the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240 (1)” and distinguished this case from those where a ladder collapses for no apparent reason. The Court found that there were questions of fact as to whether the staircase provided adequate protection – particularly with respect to the conflicting expert opinions. While both expert affidavits were phrased in the context of compliance with industry standards, the Court held compliance is not enough to establish adequacy, but their ultimate opinion on adequacy did raise an issue of fact.

Justice Rivera’s lengthy dissent focused on the majority’s reliance on the “industry standard” as the bases of the expert opinions and argues that reference to industry custom and practice contradicts the legislative intent of the statute by enabling owners, contractors and their agents to set their own standard of care for workers’ protections, thereby diminishing their statutory obligations.

While the argument that a plaintiff was the sole proximate cause of an accident must be supported by an expert affidavit, the practitioner must ensure that the basis of any expert’s findings is valid, in order to demonstrate a question of fact requiring the issue to be decided by a jury. Despite the dissent, an opinion grounded on “industry standards” is a valid basis for an expert opinion.

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com

Accident Report Alone Sufficient for Summary Judgment in Labor Law Claim (NY)

In Weicht v. City of New York, the plaintiff was injured when he fell from a ladder while working on the job site. However, plaintiff could not provide any details regarding the cause of his fall to support his motion for summary judgment under Labor Law § 240(1). Instead, plaintiff relied on a post-accident OSHA report to establish that the bottom of the ladder he was standing on suddenly slipped out from beneath him, causing his fall.  The lower court ruled that the evidence set forth was sufficient and granted plaintiff summary judgment.

On appeal, the First Department held that the defendant failed to properly challenge the admissibility of accident report during the original motion and could not raise the issue on appeal. But regardless, the First Department also opined that the report was admissible evidence because it constituted a business record. In addition, contained within the OSHA report was a statement from the defendant employer regarding the cause of the accident which was was admitted as a vicarious admission of an employee.   As such, the award of summary judgment was affirmed – despite any testimony from plaintiff regarding how the accident occurred.

Thanks to Geoffrey Blue for his contribution to this post and please write to Mike Bono for more information.

NY Labor Law – Strict Liability – Strict Interpretation

New York Labor Law actions involve issues of strict liability — not negligence, a significant distinction. This distinction figured heavily in the court decision of Bridgemohan v. Cornell Group, Inc. The case arose out of a fall from an unsecured ladder that was not equipped with rubber feet.  The plaintiff had been working at a multi-family home patching cracks in the wall of a garage.  The ladder slipped as he ascended it causing him to fall onto concrete ground.

The plaintiff moved for summary judgment under Labor Law §240(1), and the defendants made two arguments in opposition. First, defendants argued that plaintiff was the sole proximate cause of his injuries.  Second, defendants argued that plaintiff was not a protected class under the statute since he had not been directly hired by them to do the work.

As to the first argument, there was speculative testimony from the defendant property owner that the plaintiff had attempted to do a jump turn while on the ladder, which caused the fall.  The judges looked dubiously upon this testimony given the position and vantage point of the witness.  Ultimately, this testimony proved unavailing in any event.  Even assuming plaintiff was negligent in doing a jump turn, this would not absolve the defendants from strict liability resulting from the failure to provide proper equipment, a statutory protection for the work he was doing.  Elicited testimony which attempts to place fault on the plaintiff is irrelevant if a violation of a statute in any way caused the accident.

Any negligence on his part would be insufficient to constitute an unforeseeable or extraordinary act that would be a superseding cause of the accident.

The court likewise was not persuaded that plaintiff was a volunteer and not a worker. While the defendants had in fact hired another person to do the job, that person had, in turn, hired the plaintiff to assist. The defendants paid the person they hired who paid the plaintiff.  The plaintiff testified that he expected to be paid, and the contractor who asked plaintiff to assist with the work testified that he had always planned to, and did pay plaintiff.  Thus, plaintiff was part of the protected class of workers.

Thanks to Christopher Goia for his contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com

Lack Of Contract Allows GC To Escape Labor Law Claim (NY)

General contractors are virtually always caught in the web of Labor Law construction claims in New York.  But recently, the Appellate Division, First Department dealt with an interesting issue: what happens when plaintiff is injured performing work outside of the relevant contract between the GC and the owner?

In Ortiz v. IGBY Huntlaw LLC,plaintiff Wilson Ortiz was injured when he fell off a ladder while painting an apartment in Manhattan.  He sued the property owner, IGBY Huntlaw LLC, and the general contractor, A.E. Grayson & Co., Inc., under claims  negligence, and violations of Labor Law 200, 240(1) and 241(6).  Plaintiff was employed as a painter by Uriu, LLC, an entity that was retained directly by the property owner – and there was no contract between Uriu and Grayson.

Grayson moved for summary judgment at the end of discovery, relying on the fact that the contract between Grayson and the owner specifically excluded painting from the services to be provided.  They also argued that there was no contract between Grayson and plaintiff’s employer and Grayson did not have actual or contractual authority to control the plaintiff’s work.

In opposition, the plaintiff submitted a post-deposition affidavit stating that a Grayson supervisor directed plaintiff and his co-workers as to where and how they should perform their work.  This affidavit contradicted the testimony of the Grayson witness and the witness from Uriu, both of whom testified that only the Uriu foreman could or would direct the plaintiff’s work.  The trial court held that the plaintiff’s affidavit was sufficient to establish a question of fact as to whether Grayson directed, supervised or controlled plaintiff’s activities on the project.

The Appellate Division, First Department reversed, and granted Grayson’s motion for summary judgment dismissing all of the plaintiff’s claims.  The Court held that because plaintiff’s work was outside the scope of Grayson’s contract with the owner, Grayson had no right to control the work and could not be held liable under Labor Law §§ 240(1) or 241(6).  The Court also dismissed the common law negligence and Labor Law 200 claim, because Grayson had no authority to control the work that caused the plaintiff’s injury.

Noticeably absent from the Appellate Division’s holding was any consideration for the allegations that Grayson was actually directed the plaintiff’s work.  Because Grayson did not have the authority to direct and control the plaintiff, the Court found that it could not be held liable for the plaintiff’s injuries under the Labor Law.   Perhaps if plaintiff’s claims that Grayson directed his work had been corroborated by another witness, the court might have reached a different result.  But the mere allegation by plaintiff that another party directed his work at the time of his accident – which was contrary to the contractual language – was found insufficient to create a question of fact in the First Department.

Thanks to John Collins for his contribution to this post and please write to Mike Bono if you are interested in more information.

Iron Worker… Ladder… Elevation… No Labor Law § 240 Claim (NY)

Labor Law § 240 requires property owners, construction companies, and contractors to protect their workers from elevation-related risks, and holds them strictly liable for plaintiff’s injuries if they fail to do so. Counsel in Labor Law cases therefore spend large amounts of time and effort litigating whether plaintiff’s injuries implicate Labor Law § 240, as the answer will often significantly affect a case’s value. The Second Department’s recent decision in Guallpa v Canarsie Plaza, LLC informs us, however, that not all plaintiffs injured off the ground may assert Labor Law § 240 claims.

In Guallpa, plaintiff, an iron worker, was standing on a ladder while working to secure an overhead steel beam to the building structure. While plaintiff was working, another employee, operating a forklift at ground level, struck a portion of the beam plaintiff was working on. This caused the beam to shift and, unfortunately, pinned plaintiff’s arm between the beam and a nearby concrete wall, inflicting injuries. Both plaintiff and defendants cross-moved for summary judgment as to plaintiff’s Labor Law § 240 claim, and the trial court denied both motions.

On appeal, the Second Department reversed the trial court decision and granted summary judgment to defendants. The Second Department, focusing on the purpose of Labor Law § 240, noting that while the law is meant to protect workers from elevation-related risks, merely working above ground level does not automatically entitle workers to its protections. Specifically, the Second Department identified Labor Law § 240 as guarding workers against two types of risks: elevation-related (a worker falling from a height) and gravity-related (objects falling from a height onto the worker). Therefore, the Second Department concluded, because plaintiff was not injured by either a falling object or by falling from a height, he could not properly assert a claim under Labor Law § 240. Unfortunately for defendants, the Second Department then reversed the trial court’s ruling that they were entitled to summary judgment on plaintiff’s Labor Law § 241(6) claim, holding that they had failed to offer facts sufficient to refute plaintiff’s claim that the steel beam that injured him was improperly secured pursuant to a potentially applicable Industrial Code provision.

Guallpa serves as a reminder to all Labor Law defense practitioners to carefully scrutinize a plaintiff’s bill of particulars and deposition transcript to establish the precise mechanism of plaintiff’s injury. In a field where ladders and heights often indicate increased settlements and damages awards, be sure to establish if plaintiff is in fact entitled to assert a Labor Law § 240 claim.

Thanks to Peter Luccarelli for his contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.


Work Area By Any Other Name Would Still Be a Work Area (NY)

Victor Caminito was employed by a nonparty subcontractor on a 30-story building under construction that was ultimately going to be a condominium with retail space on the first floor.  On the day of the accident, plaintiff spent the morning setting marble in the lobby of the building. After lunch, he was instructed by the project supervisor for the construction site, to clear out a room that was off the lobby, where many of the trades had stored their equipment and materials.  In the process of removing material stored in it, plaintiff was injured when, while walking backwards with a wheelbarrow, he tripped and fell over a stack of metal studs located on the floor.

In Caminito v Douglaston Dev., LLC, the plaintiff brought suit under Labor Law § 241(6) and claimed specific violations of the Industrial Code.  That statute imposes on owners and contractors a nondelegable duty to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations” contained in the New York State Industrial Code.

Plaintiff’s claim was predicated on Industrial Code (12 N.Y.C.R.R.) § 23-1(e)(2), which provides, in pertinent part, that work areas “shall be kept free from accumulations of dirt and debris and from scattered tools and materials”.  The room where plaintiff fell was variously described as approximately 10′ X 15′ or 20′ X 40′ and had only one entrance/exit. Both plaintiff and the project supervisor testified at their depositions that the material in the room needed to be removed to complete its construction. The project supervisor testified that this room was part of the overall building construction project.

Defendants moved for summary judgment to dismiss the Labor Law § 241(6) claim.  Defendants argued that the area where plaintiff fell was not a “work area” but rather a storage room and thus not a work area as defined by the statute.   The Court disagreed finding a question of fact as to whether the studs were scattered in plaintiff’s work area.

The testimony of both plaintiff and the project supervisor clearly stated that construction was going to take place in that room. Indeed, the purpose of removing the material stored in that room was to enable the construction work to take place. Although plaintiff was not actually performing his job as a marble setter at the time of the accident, under these circumstances his activities bring him within the ambit of the statute.

Defendants have to be aware that scattered tools and building materials on a construction site presents a difficult fact pattern to overcome when analyzing liability under Labor Law § 241(6).

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com


Homeowner Escapes Labor Law Liability for Contractor’s Ladder Fall (NY)

Homeowners are free from liability under common law negligence, as well as under Labor Law §§§ 200, 240(1) and 241(6), to a contractor performing work at their residence where their general awareness of the state of the premises is insufficient to impute notice of an unsafe condition and where they did not direct or control the manner in which the plaintiff performed his work, create the allegedly dangerous condition that caused the accident, or provide the plaintiff with any of his materials or equipment.

In Dasilva v Nussdorf , the plaintiff was allegedly injured when he fell from a ladder while painting a cottage located on the defendants’ 16-acre residential estate. The cottage had formerly served as the estate caretaker’s residence and following his departure, was being renovated by the homeowners, who had hired the company that employed plaintiff. Plaintiff testified that the ground on which the ladder was placed was uneven, soft, and filled with debris as a result of ongoing landscaping. The ladder, which plaintiff erroneously believed was owned by defendants, sunk into the ground, causing him to fall.

The lower court granted the summary judgment motion of defendants, dismissing plaintiff’s complaint which alleged violations of Labor Law §§ 200, 240(1), and 241(6), as well as common-law negligence. The court found that the exemption under the Labor Law §§ 240(1) and 241(6) for owners of single and two family houses applied in this instance where the homeowners established that the work being performed directly related to the residential use of the cottage and that they did not direct or control plaintiff’s work.

The court also found that dismissal of the claims pursuant to common law negligence and Labor Law § 200 ( statutory version of the common law duty of an owner to provide employees with a safe place to work ) was appropriate where the homeowners also demonstrated that they did not create the alleged dangerous conditions or have actual or constructive notice of such conditions because they did not own the ladder or provide plaintiff with any  of his materials or equipment. With respect to the allegedly uneven and soft ground filled with debris, the defendants established that they did not create the condition and although they may have had general awareness that the ground was uneven and soft, such awareness was insufficient to impute notice of an unsafe condition.

The Appellate Division, Second Department agreed with the ruling of the Supreme Court and accordingly, affirmed its decision regarding the dismissal of plaintiff’s complaint.

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.