NEW YORK LABOR LAW APPLIED & SUMMARY JUDGMENT GRANTED TO PROTECT BRIDGE-BUILDING CONSTRUCTION WORKER STANDING ON BOAT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Harrison v. State of New York

Date: Oct. 25, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens

Comment: New York State's Labor law protects construction workers from height- (gravity-) related accidents.

In this case, the injured accident victim/worker successfully asked the Court (made a motion) for summary judgment in his favor, on the issue of liability, for his Labor Law claim.

Not the usual type of fact pattern here: the construction worker was standing on a boat at the time of the accident, working on building a bridge. He was helping lower a machine some five or six feet from a pier onto the boat as part of the bridge construction. This difference in height gave the Court a reason to apply the Labor Law to protect this worker and grant summary judgment to him on the issue of liability for his injury claim.

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In a claim, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Court of Claims (Lack, J.), dated June 30, 2010, which denied its motion for summary judgment dismissing the claim and granted the claimant's cross motion for summary judgment on the issue of liability pursuant to Labor Law Sec. 240(1).

ORDERED that the order is modified, on the law and the facts, by deleting the provisions thereof denying those branches of the defendant's motion which were for summary judgment dismissing so much of the claim as alleged violations of Labor Law Secs. 200 and 241(6) and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The claimant, a construction worker employed on the State of New York's Wantagh Bridge project, was assigned by his supervisor to build a rain shelter over other workers with the assistance of two coworkers. To do so, the claimant and his coworkers needed to move a portable generator weighing 150 to 200 pounds from one bridge pier to another. Although there were cranes on site, none were available to move the generator. Instead, the workers' supervisor told them to move the generator using a tugboat. The claimant's coworkers lifted the generator to the lip of the pier and the claimant, who was standing on the boat, attempted to steady it from the deck of the boat, approximately 5-1/2 to 6 feet below. However, before the claimant's coworker could get down to help him lift the generator to the boat's deck, the generator slipped toward the claimant, caught on his tool belt, and pulled him to the deck, injuring his back.

The claimant brought this claim against the State of New York, the owner of the site, alleging violations of Labor Law Secs. 200, 240(1), and 241(6). The State moved for summary judgment dismissing the claim, and the claimant cross‑moved for summary judgment on the issue of liability pursuant to Labor Law Sec. 240(1). The Supreme Court granted the claimant's cross motion and denied the State's motion in its entirety. We modify.

The goal of Labor Law Sec. 240(1) is to "provide 'exceptional protection' for workers against the 'special hazards' which stem from a work site that is either elevated or positioned below the level where materials are hoisted or secured" (La Veglia v. St. Francis Hosp., 78 A.D.3d 1123, 1126, 912 N.Y.S.2d 611, quoting Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501_502, 601 N.Y.S.2d 49, 618 N.E.2d 82; see Cun-En Lin v. Holy Family Monuments, 18 A.D.3d 800, 796 N.Y.S.2d 684). However,

"[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law Sec. 240(1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein."

(Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085; see Gutman v. City of New York, 78 A.D.3d 886, 887, 911 N.Y.S.2d 458). Thus, injuries arising from "routine workplace risks" rather than from elevation differentials will not fall within the statute's protection (Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865; see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932). Instead, "the single decisive question is whether the claimant's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v. New York Stock Exch., Inc., 13 N.Y.3d at 603, 895 N.Y.S.2d 279, 922 N.E.2d 865; see Gasques v. State of New York, 59 A.D.3d 666, 667, 873 N.Y.S.2d 717, affd. 15 N.Y.3d 869, 910 N.Y.S.2d 415, 937 N.E.2d 79).

Here, despite the State's arguments to the contrary, the 5-/2 or 6 foot elevation between the pier and the deck of the boat that the claimant was standing on created a sufficient elevation‑related risk to trigger Labor Law Sec. 240(1) liability (compare Outar v. City of New York, 286 A.D.2d 671, 672, 730 N.Y.S.2d 138, affd. 5 N.Y.3d 731, 799 N.Y.S.2d 770, 832 N.E.2d 1186). The State's arguments that this was a routine hazard typically associated with a construction site and that the height of the generator above the claimant was de minimis are unavailing (see Runner v. New York Stock Exch., Inc., 13 N.Y.3d at 602-603, 895 N.Y.S.2d 279, 922 N.E.2d 865; Pritchard v. Tully Constr. Co., Inc., 82 A.D.3d 730, 918 N.Y.S.2d 154; Mendoza v. Bayridge Parkway Assoc., LLC, 38 A.D.3d 505, 506, 831 N.Y.S.2d 485; Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619, 620-621, 769 N.Y.S.2d 559; but see Gutman v. City of New York, 78 A.D.3d at 886-887, 911 N.Y.S.2d 458; Garcia v. Edgewater Dev. Co., 61 A.D.3d 924, 925, 878 N.Y.S.2d 134; Ienco v. RFD Second Ave., LLC, 41 A.D.3d 537, 538_539, 840 N.Y.S.2d 792). Accordingly, the court properly granted the claimant's cross motion for summary judgment on the issue of liability pursuant to Labor Law Sec. 240(1).

That branch of the State's motion which was for summary judgment dismissing so much of the claim as alleged a violation of Labor Law Sec. 241(6) should have been granted, as the specific Industrial Code provision upon which the claimant predicated this claim has no application under the facts presented.

Labor Law Sec. 241(6) "imposes a nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 348, 670 N.Y.S.2d 816, 693 N.E.2d 1068, quoting Labor Law Sec. 241[6]). In so doing, owners are obliged to comply with any applicable regulations of the Industrial Code and may be held liable for a violation of a provision "mandating compliance with concrete specifications" (La Veglia v. St. Francis Hosp., 78 A.D.3d at 1125-1126, 912 N.Y.S.2d 611, quoting Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at 505, 601 N.Y.S.2d 49, 618 N.E.2d 82; see Cun-En Lin v. Holy Family Monuments, 18 A.D.3d at 802, 796 N.Y.S.2d 684; Misicki v. Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213; Miano v. Skyline New Homes Corp., 37 A.D.3d 563, 565, 830 N.Y.S.2d 257; Labor Law Sec. 241[6]). Because this section imposes "a nondelegable duty on property owners, [a] plaintiff need not show that [the] defendant[ ] exercised supervision or control over the work site in order to establish a right of recovery under section 241(6)" (St. Louis v. Town of N. Elba, 16 N.Y.3d 411, 413, 923 N.Y.S.2d 391, 947 N.E.2d 1169; see Romero v. J & S Simcha, Inc., 39 A.D.3d 838, 839, 835 N.Y.S.2d 306).

Here, the State contends that the section relied upon by the claimant, namely, 12 NYCRR 23-1.7(f), is not applicable to the facts of this case and therefore cannot serve as the basis for liability under Labor Law Sec. 241(6). We agree.

Whether a regulation applies to a particular condition or circumstance is a question of law for the court (see Spence v. Island Estates at Mt. Sinai II, LLC, 79 A.D.3d 936, 938, 914 N.Y.S.2d 203).

12 NYCRR 23-1.7(f) provides that:

"Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided."

Here, the tugboat that the plaintiff was standing in was not a working level below ground requiring a stairway, ramp, or runway under the regulation (see Torkel v. NYU Hosps. Ctr., 63 A.D.3d 587, 883 N.Y.S.2d 8; Lavore v. Kir Munsey Park 020, LLC, 40 A.D.3d 711, 835 N.Y.S.2d 708; Amantia v. Barden & Robeson Corp., 38 A.D.3d 1167, 1169, 833 N.Y.S.2d 784; Farrell v. Blue Circle Cement, Inc., 13 A.D.3d 1178, 787 N.Y.S.2d 773).

Labor Law Sec. Sec. 200 "codifies the common‑law duty imposed upon an owner or general contractor to provide construction and demolition workers with a safe place to work" (La Veglia v. St. Francis Hosp., 78 A.D.3d at 1125, 912 N.Y.S.2d 611; see Aguilera v. Pistilli Constr. & Dev. Corp., 63 A.D.3d 763, 764, 882 N.Y.S.2d 148). Where, as here, a claimant's Labor Law Sec. 200 claim is premised upon "alleged ... dangers in the methods ... of the work" (Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323), an owner or general contractor will be held liable only where it "had the authority to supervise or control the performance of the work" (Austin v. Consolidated Edison, Inc., 79 A.D.3d 682, 683-684, 913 N.Y.S.2d 684 [internal quotation marks omitted]; see La Veglia v. St. Francis Hosp., 78 A.D.3d at 1125, 912 N.Y.S.2d 611; Erickson v. Cross Ready Mix, Inc., 75 A.D.3d 519, 522, 906 N.Y.S.2d 284). However, " '[t]he right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law Sec. 200 or for common‑law negligence' " (Austin v. Consolidated Edison, Inc., 79 A.D.3d at 684, 913 N.Y.S.2d 684, quoting Gasques v. State of New York, 59 A.D.3d at 668, 873 N.Y.S.2d 717; see La Veglia v. St. Francis Hosp., 78 A.D.3d at 1125, 912 N.Y.S.2d 611).

Here, the claimant testified at his deposition, as did his coworker, that the workers received their instructions from a contractor's foreman and that the State's inspectors primarily monitored the site for quality control. The State's engineer in charge confirmed that, although the State had the power to stop work due to safety risks, his primary role, and that of the inspectors, was to ensure that work was performed in accordance with project specifications and to monitor for quality control. Since the State carried its prima facie burden of demonstrating that it lacked sufficient authority to supervise or control the work and the claimant did not raise a triable issue of fact, the Supreme Court erred in denying that branch of the State's motion which was for summary judgment dismissing so much of the claim as alleged a violation of Labor Law Sec. 200 (see Gurung v. Arnav Retirement Trust, 79 A.D.3d 969, 970, 915 N.Y.S.2d 97; Austin v. Consolidated Edison, Inc., 79 A.D.3d at 684, 913 N.Y.S.2d 684; La Veglia v. St. Francis Hosp., 78 A.D.3d at 1125, 912 N.Y.S.2d 611; Erickson v. Cross Ready Mix, Inc., 75 A.D.3d at 522-523, 906 N.Y.S.2d 284; Delahaye v. Saint Anns School, 40 A.D.3d 679, 684, 836 N.Y.S.2d 233).

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