Civil Rights Round Up
Define That Term #160

Second Department Holds Fall From Height Not Within Ambit of the Labor Law

In a recent Second Department Labor Law case, Linkowski v City of New York, 2006 NY Slip Op 07856, the plaintiff was injured when he slipped and fell on a wet stairway landing and fell through plastic netting at the edge of the landing and fell four or five feet down to the floor below.  At the time, the plaintiff was performing asbestos removal work at a Department of Sanitation facility owned by the City of New York.

The Second Department considered a number of interesting issues, including whether Labor Law ss. 240(1), 241(6) and 200 applied to the plaintiff's claims of injury. 

Not surprisingly, the Court concluded that s. 240(1) did not apply since the alleged injuries were not the result of an elevation-related risk within the meaning of that section of the Labor Law.

However, the Court concluded that there were issues of fact as to the plaintiff's Labor Law ss. 241(6) and 200 claims:

With respect to the plaintiff's Labor Law § 241(6) cause of action, to the extent it is predicated upon an alleged violation of 12 NYCRR 23-1.7(d), the Supreme Court correctly found that triable issues of fact exist as to whether the City violated that regulation by allegedly permitting a slippery condition to exist on the stairway landing...Contrary to the City's contention, the plaintiff's deposition testimony established that the stairway landing where the accident occurred was a passageway to and from the work site... Responsibility under Labor Law § 241(6) extends not only to the point where the . . . work was actually being conducted, but to the entire site, including passageways utilized in the provision and storage of tools, in order to insure the safety of laborers going to and from the points of actual work...

With respect to the plaintiff's common-law negligence and Labor Law § 200 causes of action, summary judgment was properly denied since there are issues of fact as to whether the City created or had actual or constructive notice of the allegedly dangerous condition which caused the plaintiff's accident... (Internal citations and quotations omitted).

Another issue considered by the Court was whether one of the defendants, Bovis, was liable as an agent for either the owner or general contractor under the Labor Law.  Since this is an issue that comes up fairly frequently in Labor Law cases, the Court's concise summary of the applicable legal standards is worthy of mention:

A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured...To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition... It is not a defendant's title that is determinative, but the amount of control or supervision exercised...(Internal citations and quotations omitted.)

The Court concluded that the record established that Bovis' role was one of general supervision only and that Bovis was only a general contractor or the City's statutory agent since the plaintiff failed to submit evidence demonstrating that Bovis had supervisory control over the plaintiff's, so as to enable it to prevent or correct any unsafe conditions.  Accordingly the Court upheld the dismissal of the  claims and cross-claims against Bovis.

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