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New York Labor Law Section 240 - Worker Suffered a Gravity Related Injury - App. Div. 2d Dep't.

There has been a lot of discussion in the news about construction accidents, specifically the large crane falling in New York City, killing a worker on site. New York State applies strict liability in certain construction-site accidents. The public policy behind the New York Labor Law and certain Gravity Related Accidents is not to allow others to evade or escape liability on a legal technicality: such provisions impute liability irrespective of the precautions taken.

The procedural posture of the case is summary judgment once it reaches the Appellate Division of the Second Department - the Appellate Division holds that the Plaintiff should have been awarded summary judgment on the issue of liability. Again, this goes to the strict liability portion of the New York Labor Law when it comes to construction-site accidents.

Plaintiff was an injured construction laborer. A large four-foot piece of concrete hit a cross beam and struck him in the head, knocking him unconscious and leaving him with a skull fracture. The Defendants retained third-party defendant Fox Industries (Fox) in connection with the rehabilitation of a subway line in Brooklyn. The project required, inter alia, workers to remove certain encasements surrounding the beams. Workers utilized a vertical netting, secured to plywood, to ensure that debris would not fall outside of the controlled access zone, outside of the work site. Ultimately, this failed as falling debris hit the plaintiff causing the aforementioned injuries.

The New York Labor Law, New York Labor Law Section 240, applies to the following case:

"Labor Law § 240 (1) imposes a nondelegable duty . . . to provide safety devices necessary to protect workers from risks inherent in elevated work sites" (Vasquez-Roldan v Two Little Red Hens, Ltd., 129 AD3d 828, 829 [2015]; see McCarthy v Turner Constr., Inc., 17 NY3d 369, 374 [2011]; Alfonso v Pacific Classon Realty, LLC, 101 AD3d 768, 770 [2012]). That section provides that "[a]ll contractors and owners and their agents . . . 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" (Labor Law § 240 [1]). The term "owners," as used in the context of Labor Law § 240 (1), "has been held to encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit" (Copertino v Ward, 100 AD2d 565, 566 [1984]; see Wicks v Leemilt's Petroleum, Inc., 103 AD3d 793, 795-796 [2013]). "To recover on a cause of action pursuant to Labor Law § 240 (1), a plaintiff must demonstrate that there was a violation of the statute, and that the violation was a proximate cause of the accident" (Przyborowski v A&M Cook, LLC, 120 AD3d 651, 653 [2014]; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]; Vasquez-Roldan v Two Little Red Hens, Ltd., 129 AD3d at 829).

"Labor Law § 240 (1) applies to both 'falling worker' and 'falling object' cases" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). " '[F]alling object' liability under Labor Law § 240 (1) is not limited to cases in which the falling object is in the process of being hoisted or secured" (Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758-759 [2008]; see Sung Kyu-To v Triangle Equities, LLC, 84 AD3d 1058, 1059-1060 [2011]; Vargas v City of New York, 59 AD3d 261, 261 [2009]). However, "section 240 (1) does not automatically apply simply because an object fell and injured a worker" (Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 663 [2014]; see Roberts v General Elec. Co., 97 NY2d 737, 738 [2002]; Moncayo v Curtis Partition Corp., 106 AD3d 963, 965 [2013]; Fried v Always Green, LLC, 77 AD3d 788, 789 [2010]). Rather, "[a] plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]; see Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d at 662). Accordingly, "[i]n order to prevail on summary judgment in a section 240 (1) 'falling object' case, the injured worker must demonstrate the existence of a hazard contemplated under that statute 'and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein' " (Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d at 662, quoting Narducci v Manhasset Bay Assoc., 96 NY2d at 267; see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

Pp. 2 (external quotation marks omitted; internal quotations and citations preserved).

The Plaintiff submitted evidence to the Court that showed that the Defendants, including Fox, had a non-delgable duty to protect the Plaintiff here from, inter alia, falling debris. "The plaintiffs' submissions demonstrated that the injured plaintiff suffered harm that 'flow[ed] directly from the application of the force of gravity" to the piece of concrete that struck him (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]; see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 10), and that given the nature and purpose of the work that was being performed at the time of his injury, the falling debris presented a significant risk of injury such that the MTA defendants were obligated under Labor Law § 240 (1) to use appropriate safety devices to safeguard the injured plaintiff from the harm it posed." Pp. 3 (citing Sung Kyu-To v Triangle Equities, LLC, 84 AD3d at 1060; Vargas v City of New York, 59 AD3d at 261; cf. Narducci v Manhasset Bay Assoc., 96 NY2d at 268). The injury was such that falling debris, that the Defendants tried to secure via the netting, was a direct consequence of failure to provide adequate protection against that very risk. "Indeed, the plaintiffs established that the vertical netting that was installed around the controlled access zone to protect workers from the falling debris had pulled loose from the plywood barricade, creating an opening through which the concrete that struck the injured plaintiff traveled." Pp. 3.

The Court concludes that, "[u]nder these circumstances, the vertical netting constituted a safety device within the meaning of Labor Law § 240 (1)...and the plaintiffs demonstrated that it was not "' so constructed, placed and operated as to give proper protection' " Pp. 3 (Labor Law § 240 (1)). Albeit there was significant effort to ensure safety by the defendants, had there been an adequate safety device within the meaning of the New York Labor Law, Section 240, such an accident would not have occurred and the Plaintiff would not have endured such a severe injury. "Accordingly, the Supreme Court should have granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240 (1) insofar as asserted against the MTA defendants." Pp. 3

The case is Sarata v Metropolitan Transp. Auth., 2015 NY Slip Op 09667 (134 AD3d 1089) (App. Div. 2d Dep't. Dec. 30, 2015).

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