In a recent Second Department case, a man and his decedent wife were hired to hang wallpaper in a newly constructed office building. The day after they were instructed to begin work on the subject building, the decedent woman drove her vehicle with her husband to the jobsite. When they were unable to enter the building through the front entrance, the decedent woman drove her vehicle through an opening in the fence onto the upper level of a parking garage that was still under construction.
The vehicle was about halfway between the opening gate in the fence and the leading edge of the parking deck when the decedent told her husband that she could not stop the vehicle. The vehicle slid on ice until it reached the edge of the incomplete parking deck, broke through the steel cable guardrail system that was intended to protect individual workers, and fell 32 feet to the lower level of the parking garage. The man was injured when he jumped out of the vehicle before it fell. The decedent woman fell with the vehicle and died at the scene.
The man subsequently started this action on behalf of himself and his decedent wife against the property owner, property manager, the construction manager, the structural steel contractor, the installer of the steel, and the concrete subcontractor. He alleged the defendants violated Labor Law §§200, 240(1), and 241(6) as well as common law negligence.
Following discovery, the defendants moved for summary judgment dismissing plaintiff’s Labor Law and common-law negligence causes of action. The lower court denied the defendants’ motion. The defendants appealed and the Second Department reversed the lower court’s decision.
In dismissing the plaintiff’s Labor Law §§ 240(1) and 241(6) claims, the Second Department held that wallpapering is not an enumerated activity under the Labor Law and that the work to be performed was not part of the larger construction project. Further, the plaintiff cannot establish a violation of Labor Law § 241(6), since the plaintiff and his decedent were not working in a construction area at the time of the accident, and the accident did not occur in connection with construction, demolition, or excavation work being performed by them. While the Court acknowledged that it should not “isolate the moment of injury,” it concluded that, “under the circumstances presented, the accident occurred before the plaintiff and his decedent had begun any work that conceivably could have been covered under these sections of the Labor Law.”
The Second Department did also hold that the lower court properly denied that branch of the concrete subcontractor’s cross motion which was for summary judgment dismissing the common-law negligence cause of action insofar as asserted against it. The evidence presented by the concrete subcontractor failed to establish that its workers did not create a dangerous condition when they removed a portion of the fence meant to close off access to the parking deck to allow for a delivery truck to enter and then failed to replace the fence once the delivery was complete, or that this dangerous condition was not a proximate cause of the accident.
If you or someone you know has been involved in a garage accident, please contact our attorneys immediately.