A man was working on stilts, taping and spackling the kitchen ceiling of a single-family home, when the stilts allegedly became entangled in an electrical cable or wire on the floor, causing the man to lose his balance and fall to the ground, and sustain injuries. The man, who is about five feet tall, was working on a ceiling approximately nine to ten feet tall, and so he needed to extend his stilts to their maximum height of 40 inches.
The man sued the drywall subcontractor to recover damages for personal injuries, asserting causes of action alleging violations of Labor Law §200, §240(1), and §241(6). Defendant filed a motion for summary judgment dismissing the claim.
The lower court held that defendant was entitled to the dismissal of the cause of action based on Labor Law §200. The lower court reasoned that there was no evidence in this case supportive of a Labor Law §200 claim that subcontractor created or had notice of the dangerous condition (the cable) from which the man allegedly sustained his injury.
Likewise, the lower court held that defendant was also entitled to the dismissal of the cause of action based on Labor Law §240(1). The lower court cited a Court of Appeals decision which held that a carpenter who was injured when he walked down a corridor wearing 42-inch stilts that he had been using to install metal studs in drywall and who tripped over an electrical conduit protruding from an unfinished floor had no cause of action based on Labor Law §240(1). The Court of Appeals reasoned that the carpenter’s injury resulted from the conduit on the floor, not from a failure of the stilts, and that therefore the injury did not result from an elevation-related risk. The lower court held that plaintiff failed to distinguish his case from the Court of Appeals case, which was dispositive.
The lower court, however, held that defendant was not entitled to the dismissal of the cause of action based on Labor Law §241(6), which provides that areas in which construction is being performed shall be guarded, arranged, operated, and conducted in a manner which provides “reasonable and adequate protection and safety to the persons therein.” The nondelegable duty is imposed by Labor Law §241(6) upon owners and contractors and their agents.
The lower court explained that a cause of action based on Labor Law § 241(6) must refer to a violation of the specific standards set forth in the implementing regulations. The plaintiff must allege a violation of more than the general safety standards of the Industrial Code.
The court held that 12 NYCRR 23-5.22 regulation pertaining to stilts is specific enough to provide a basis for a cause of action pursuant to Labor Law §241(6). The court further held that this regulation was allegedly violated by the use of stilts elevating plaintiff more than 24 inches above the floor and by use on a floor not kept clear of obstructions. The court pointed out that plaintiff allegedly used his stilts to work 40 inches above a floor that had a cable upon it.
The lower court further explained that a subcontractor’s liability under Labor Law §241(6) as a statutory “agent” is limited to those areas and activities within the scope of work delegated to it, essentially, where it has been given authority to supervise and control the injury producing activity. The court held that there was an issue of fact concerning whether defendant was merely a subcontractor without authority to supervise the plaintiff’s work. The court reasoned that defendant’s supervisor admitted that his company directed the course of construction and that he was at the job site every day or every other day. He would tell subcontractors engaged in dangerous activities to cease doing so. Therefore, the lower court held that the summary judgment dismissing the Labor Law §241(6) cause of action was precluded by an issue of fact concerning whether defendant functioned as the statutory agent of the general contractor. Defendant appealed.
On appeal, the Second Department held that branch of the appellant’s motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law §241 (6) was properly denied, and affirmed the lower court’s decision. If you have been injured, call us right away.