An employee of a framing contractor slipped and was injured while carrying a 300-pound framed mirror. While carrying the frame, his foot became caught in a seam between pieces of construction paper laid by a general contractor to protect a newly installed floor during a hotel lobby renovation project. The injured man filed suit against the general contractor to recover damages for his injuries, alleging violations of Labor Law §241(6) and §200 and common law negligence. The general contractor filed a motion for summary judgment dismissing the complaint.
The lower court dismissed the Labor Law §241(6) claim, holding the evidence demonstrated that the plaintiff’s interior decorating work, which involved the manufacture and hanging of a mirror in the hotel’s main lobby, was not done in the context of construction, demolition or excavation work. Additionally, the lower court held that even assuming that the plaintiff’s work was performed in the context of construction, demolition or excavation, the provision of the Industrial Code (12 NYCRR §23-1.7 (e)), upon which plaintiff relied in support of his Labor Law §241(6) claim, lacked evidentiary support in the record for its application.
Plaintiff described the main lobby in which his accident occurred as a big open space, and the lower court concluded that such an area would not fit within the term of a “passageway,” as set forth in the provision of the Industrial Code. The Court further pointed out that the Industrial Code provision pertains to such tripping hazards as dirt, debris and scattered tools and materials in a work area. The Court found that in that case, plaintiff did not trip over loose or scattered material, but rather, over brown construction paper that was purposefully laid over newly installed floors to protect them. Finally, the Court reasoned that the paper covering constituted an integral part of the floor work on the renovation project, and could not be construed to be a misplaced material over which one might trip.
The lower court also dismissed Labor Law §200 and common law negligence claims as there was no evidence that the hotel defendants had actual or constructive notice of a defect in the paper floor covering. Plaintiff appealed. On appeal, the First Department reversed the lower court’s decision dismissing the plaintiff’s claim under Labor Law §200, since the general contractor failed to meet its burden of establishing that it properly secured the paper in which plaintiff allegedly caught his foot.
The First Department pointed out that plaintiff’s contention that the general contractor created the defective condition that caused his accident, makes other questions of actual and constructive notice irrelevant. The Court added that the general contractor failed to demonstrate that the paper was secured to the floor. There was also no evidence that the tape covered the entire length of the edges of the construction paper, as its project manager testified was necessary or else the paper would not stay down and could be a tripping hazard.
Accordingly, the First Department reversed the lower court’s decision granting the summary judgment for defendant on the issue of liability under Labor Law § 200. It is important to call an attorney right away if you or someone you know is involved in an accident similar to this one.