The New York Labor Law provides protections to construction workers and places specific obligations on owners and contractors. Labor Law § 240 requires contractors and owners to provide appropriate equipment to protect workers from injuries arising from the application of the force of gravity. Labor Law § 200 requires contractors to provide a reasonably safe workplace. Labor Law § 241(6) places a non-delegable duty on contractors and owners to provide reasonable and adequate protection and safety to construction workers.
The Supreme Court in New York County recently considered the application of these laws in Fitzgerald v. Marriot International, Inc. The plaintiff was working as a steamfitter, monitoring heating pipes and checking for leaks on the night shift at the construction site. He alleged that he was injured when he slipped and fell on a piece of insulation on a ramp. He had knee surgery as a result of his fall, and he claimed that he would later need a total knee replacement.
The worker and his wife sued the hotel and the general contractor for common law negligence and violations of Labor Law §§ 200, 240(l) and 241(6). The plaintiff worked for another company and spent most of his shift inspecting the construction site. If he found a leak, he would contact his supervisor.
One of the general contractor’s site superintendents testified that workers would be expected to use the ramps, and, if he saw debris or material on the ramp, he would direct someone to clean the ramp.
The defendants moved for summary judgment. The court granted the motion as to the Labor Law § 240 claim, finding that there was no evidence that the injury resulted from a fall from a height or that the statute otherwise applied to the facts of this case.
The court then considered the Labor Law § 200 claim, noting that such claims are usually based on showing that the contractor had the authority to control the activity that would allow it to prevent or correct an unsafe condition or that it had actual or constructive notice of the defective condition that caused the injuries. The court found it could not determine if the general contractor had the authority to control the activity that caused the insulation to be on the ramp because it was unclear how the insulation came to be there. The plaintiff’s case, therefore, could only be based on the contractor’s notice of the condition.
The plaintiff testified that one of his co-workers had complained before his fall about the condition of the site and the presence of materials on the ramps. The contractor’s superintendent testified that he was not aware of any complaints regarding the condition of the site, but he admitted that he would not have been the one to receive such complaints. The superintendent was also unable to state whether any of the general contractor’s supervisors ever told anyone to clean the ramps, who was responsible for ensuring the ramps were clear, or where insulation would have been unpacked.
The defendants argued there was no evidence that the insulation had been on the ramp for a significant period, but the court noted that the defendant must establish its prima facie entitlement to summary judgment. To do so here, the contractor would have to offer specific evidence of the activities on the day of the fall, including the last time the ramp was inspected. The court found that there was no evidence as to where the materials were unpacked, how often debris was removed from the construction site, whether workers were responsible for cleaning the walkways daily, and when the contractor had last inspected and cleaned the ramps before the fall. The court found there remained material issues of fact as to whether the defendants should have known about the hazard, and therefore it denied the motion for summary judgment as to the common law negligence and Labor Law § 200 claims.
The court found that the plaintiff qualified as a construction worker, such that Labor Law § 241(6) applied to him, but it also found that the plaintiff had not cited a violation of an applicable implementing regulation of the Industrial Code, which is required to survive a motion for summary judgment under that section. The plaintiff pointed to 12 NYCRR § 23-l.7(d), 12 NYCRR § 23-l.7(e)(l), and 12 NYCRR § 23- l.7(e)(2), but the court found that all three applied to tripping hazards, and the plaintiff could not proceed on a § 241(6) claim because he had slipped, rather than tripped. The court pointed out that case law supported an interpretation that those sections do not apply to slip and fall cases. The court granted summary judgment on the § 241(6) claim.
It is unfortunate that the law draws a distinction between tripping hazards and slipping hazards, but even though some claims may be unavailable to a plaintiff who tripped, he may still have other viable claims under the Labor Law. Although the court found against the plaintiff on some of his claims in this case, his common law negligence and Labor Law § 200 claims survived summary judgment.
Nicholas Rose is a New York construction accident attorney with a deep understanding of the provisions of the New York Labor Law that place liability on owners and contractors for construction site injuries. Call us at 1-877-313-7673 today if you have been injured at a construction site.
The Law Offices of Nicholas Rose, PLLC offers free consultations.
Fitzgerald v. Marriot International, Inc., May 13, 2016, Supreme Court of the State of New York, New York County
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Plaintiff Wins Partial Summary Judgment on Labor Law § 240 – Somereve v. Plaza Construction Corp., February 24, 2016, New York City Injury Lawyer Blog
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