New York Construction Worker Injury LawC
onstruction work is an inherently dangerous. Workers are required to work at heights, heavy equipment is being moved around the site, and large objects are hoisted into the air. Many times, construction related accidents result in serious injury or even death. A worker may fall from a scaffold, or a falling object may strike a laborer.
New York recognizes the hazards construction workers face, and has enacted the Labor Law – commonly known as the “scaffold law” – that affords the worker special protection in case of an injury while working at a height or from a falling object.
The three main sections of the New York Labor Law are discussed more fully below. However, the main provision, section 240(1) imposes absolute liability upon an owner or general contractor of a commercial or large residential development where the worker is injured due to the risks associated with gravity because of the lack of an adequate protection device as enumerated in the statute. Thus, the law protects workers that have been injured when falling from a height, such as falling from a scaffold, or when an object falls during a hoisting procedure, or other gravity related accidents where proper protection should have been provided.
Labor Law § 240(1) provides in relevant part as follows:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
In establishing liability under the statute, plaintiff must show that the violation of the statute was the proximate cause of the injuries sustained. Cherry v. Time Warner, Inc., 66 A.D.3d 233, 885 N.Y.S.2d 28 (1st Dept. 2009). This violation can be because no protective device was provided, or that the device that was provided failed to furnish proper protection to the worker. “Proper protection” means that the device must be appropriately placed or erected so that it would have safeguarded the employee and must itself be adequate to protect against the hazards entailed in the task assigned. Felker v. Corning Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 351 (1997).
The Court of Appeals has recently refused to limit the protection afforded by § 240(1) to the familiar claims of “falling objects” or “falling workers.” In Runner v. New York Stock Exchange, Inc., 13 N.Y.3d 599, 895 N.Y.S.2d 279 (2009), the Court reiterated that the statute was not limited to any particular class of cases, but rather as a general rule it was “designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.” 13 N.Y.3d, at 604; quoting Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49 (1993). The Court concluded that when considering whether liability may be imposed pursuant to the statute, “the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” 13 N.Y.3d, at 603.
Once plaintiff establishes a prima facie claim under the statute, the owners and contractors are subject to absolute liability even if they did not exercise supervision or control of the work being performed. Ross, supra. Comparative negligence is not an available defense. Hernandez v. Bethel United Methodist Church of New York, 49 A.D.3d 251, 253, 853 N.Y.S.2d 305, 307 (1st Dept. 2008). However, where the injured worker’s actions were the sole proximate cause of the accident, liability will not attach. Cahill v. Triborough Bridge and Tunnel Authority, 4 N.Y.3d 35, 790 N.Y.S.2d 74 (2004). In establishing this defense, defendants must show that plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured.
In Lopez v. Boston Properties Inc., 41 A.D.3d 259, 838 N.Y.S.2d 527 (1st Dept. 2007), the First Department held that the lack of brake mechanism on pulley system used to hoist overloaded buckets constituted a failure to provide proper protection against elevation-related risks.
Narducci v. Manhasset Bay Associates, 96 N.Y.2d 259, 727 N.Y.S.2d 37 (2001), and a litany of cases, that provide that in order for a plaintiff to establish a violation in a falling object case, it must be shown that the object fell while in the process of being hoisted or secured because of the absence or inadequacy of a safety device of the type enumerated in the statute.
The injury producing object, however, does not have to be the one that was being hoisted at the time of the accident. The fact that the falling hoisted object caused another object to fall along with it is not a defense and of no consequence under the law. For example, in Apel v. City of New York, 73 A.D.3d 406, 901 N.Y.S.2d 183 (1st Dept. 2010), the First Department upheld § 240(1) violation where a crane that was hoisting a “spud” dropped the spud onto the barge plaintiff was working on and thereby caused a “keeper pin” to come up “snapping” the worker’s left arm and “hurling” him across the deck of the barge.
See also, Gabriel v. The Boldt Group, Inc., 8 A.D.3d 1058, 778 N.Y.S.2d 829 (4th Dept. 2004), in which the Fourth Department held that where an injured worker was struck by the hoisting apparatus when it collapsed while being used to lift a heavy insert, “it is undisputed that the hoisting apparatus that struck plaintiff constituted a falling object within the meaning of Labor Law § 240(1).”
Labor Law § 241(6) provides:
All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.
It is well established that Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to “provide reasonable and adequate protection and safety” for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Ross v. Curtis-Palmer Hydro-Electric Co., supra.
The Industrial Code rule or regulation alleged to have been breached must be a “specific, positive command,” rather than merely broadly requiring general safety standards. Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 670 N.Y.S.2d 816 (1998).
Control or supervision by the owner or general contractor of the worksite is not a requirement for the imposition of liability. Allen v. Cloutier Const. Corp., 44 N.Y.2d 290, 405 N.Y.S.2d 630 (1978). Nor is actual or constructive notice a prerequisite under the statute. Rizzuto, supra, (an owner or general contractor’s vicarious liability under § 241(6) is not dependent on its personal capability to prevent or cure a dangerous condition, therefore the absence of actual or constructive notice sufficient to prevent or cure is irrelevant).
A violation of the administrative rule cannot rise to the level of negligence as a matter of law; it is merely some evidence of negligence which the jury may consider on the question of defendant’s negligence. Ibid.
Comparative negligence is a defense to the action, and evidence of custom and usage is admissible to determine the standard of care. Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 493 N.Y.S.2d 102 (1985). In Zimmer, the Court of Appeals stated as follows:
… this Court has consistently rejected the notion that a violation of section 241 (6) results in absolute liability irrespective of the absence of some negligent act which caused the injury, we have repeatedly recognized that section 241 (6) imposes a nondelegable duty upon an owner or general contractor to respond in damages for injuries sustained due to another party’s negligence in failing to conduct their construction, demolition or excavation operations so as to provide for the reasonable and adequate protection of the persons employed therein. Thus, once it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff’s injury. If proven, the general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault.
The risks associated with hoisting materials by use of a manual hoist have been specifically recognized by the New York State Industrial Code. Industrial Code 12 NYCRR 23-6.1(j)(1) requires as follows:
[E]ach manually-operated material hoist shall be equipped with an effective pawl and ratchet capable of holding the rated load capacity when such a load is suspended.
A pawl and ratchet prevents the free spinning of the pulley wheel if the load was released and thereby checks the free decent of the load. In Mattison v. Wilmot, 228 A.D.2d 991, 645 N.Y.S.2d 122 (3rd Dept. 1996), the Third Department found that a violation of 12 NYCRR 23-6.1(j)(1) that requires hoist brakes to be supplied for every material hoist and that “[e]ach manually-operated material hoist shall be equipped with an effective pawl and ratchet,” constituted concrete specifications promulgated by the Commissioner of Labor sufficient to impose a duty upon defendant.
Similarly, in Carroll v. Metropolitan Life Ins. Co., 264 A.D.2d 336, 694 N.Y.S.2d 369 (1st Dept. 1999), the First Department held that where a hand-cranked hoist, although expected to lock automatically with a click, did not do so, was sufficient to raise a triable issue of fact as to whether the Industrial Code provision requiring “an effective pawl and ratchet” mechanism on manually-operated material hoists was violated. The Court found that the duty imposed by 12 NYCRR 23-6.1(j)(1) was sufficiently specific and that its breach may serve as a ground for imposing liability pursuant to Labor Law § 241(6).
Labor Law § 200 is a codification of the common law duty of an owner of a premises or employer to provide employees with a safe place to work. Comes v. New York State Elec. and Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168 (1993).
This provision applies to owners, contractors, or their agents, who have the authority to exercise supervisory control over the work activity bringing about the injury. Paladino v. Society of the New York Hospital, 307 A.D.2d 343, 762 N.Y.S.2d 637 (2nd Dept. 2003).
General supervisory authority is insufficient to constitute supervisory control. It must be demonstrated that the owner or contractor “controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed.” Hughes v. Tishman Const. Corp., 40 A.D.3d 305, 836 N.Y.S.2d 86 (1st Dept. 2007).
In addition, liability may attach for an accident at the worksite that was either created by the owner or contractor, or about which they had prior actual or constructive notice. Makarius v. Port Authority of New York and New Jersey, 76 A.D.3d 805, 907 N.Y.S.2d 658 1st Dept. 2010).
Therefore, in order to establish a prima face entitlement to summary judgment, the moving defendants must demonstrate that they neither had the authority to supervise or control the manner of the work being performed and that they neither created the dangerous condition, nor had prior actual or constructive notice of such. Paladino, 307 A.D.2d at 345.
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