Labor Law sections 240 and 241(6) apply to workers engaged in one of several enumerated construction activities. Typically, these activities include construction, demolition or excavation. Where the plaintiff is not plainly performing one of the enumerated tasks at the time of the accident, the courts have grappled with what it means to be “engaged” in an enumerated activity. In Martinez v. City of New York, the Court of Appeals narrowed the reach of sections 240 and 241(6) by rejecting the plaintiff’s contention that those sections apply to all work that is an “integral and necessary” part of the larger construction project.
Despite the Court of Appeals’ rejection of the “integral and necessary” test, the lower courts have nonetheless expanded the reach of 240 and 241(6) by applying a slightly different standard: whether the work the plaintiff was performing was part of the construction project. In performing this analysis, the courts have relied on a variety of factors, including the time frame as to when the work was performed, the plaintiff’s specific task, and the plaintiff’s employer’s purpose at the site.
In Simon v. Granite Bldg 2. LLC, the reach of Labor Law 240 and 241(6) nearly expanded to an untenable level. There, the plaintiff and his wife, the decedent, were hired to hang wallpaper at a newly constructed office building that was nearly complete. On the morning of the accident, the plaintiff and decedent drove through an opening in a fence onto the upper deck of a parking garage that was still under construction. They took this route because the front entrance was closed. When the vehicle was halfway between the fence and the building, the decedent informed the plaintiff and she could not stop the vehicle. The vehicle slowly slipped on ice until it reached the edge of the incomplete deck, broke through a steel cable guardrail system, and fell 32 feet to the lower level.
The Supreme Court held that Labor Law 240 and 241(6) applied, but the Second Department reversed. In reaching this determination, the Second Department found that the plaintiff and decedent were not engaged in an enumerated activity, that they were not working in the construction area, and that the accident did not occur in connection with construction, demolition, or excavation work being performed by them. The court rejected the plaintiff’s claim that wallpapering is itself an enumerated activity or that the work the two planned to perform was part of the larger construction project. Finally, the court reasoned that the accident occurred before the plaintiff and decedent had begun any work that conceivably could have been covered under these sections of the Labor Law.
The Second Department’s reasoning is a bit of a mixed-bag. In reaching its decision, it surprisingly analyzed whether the work the plaintiff and decedent were hired to perform was an enumerated activity, implying that had the plaintiff and decedent been hired to perform an enumerated task, sections 240 and 241(6) may have applied. On the other hand, the court concluded its reasoning by underscoring that the plaintiff and decedent had not even begun work. If there is a takeaway from Simon, it is that determining whether a worker is engaged in an enumerated activity will remain fact-specific and must be determined on a case-by-case basis.
Thanks to Gabe Darwick for his contribution.