In a recent decision, Flood v. Ahern Painting Contrs., Inc., the Appellate Division, Second Department affirmed the lower Court’s decision denying a Second Third-Party Defendant engineering firm’s motion for summary judgment.
Plaintiff commenced an action to recover damages for personal injuries he allegedly sustained when he slipped and fell from a bridge cable that was painted and treated in a defective manner while working as a bridge painter. Plaintiff alleged violations of Labor Law §§ 200, 240(1), and 241(6), common-law negligence against the general contractor for the project, as well as the painting contractor hired by the general contractor and the engineers.
The defendants then commenced a third-party action against a painting subcontractor, who in turn commenced a second third-party action sounding in common-law indemnification and contribution against an engineering and consulting firm hired by plaintiff’s employer (non-party NYCDOT) to perform resident engineering inspection services pursuant to a written contract.
The procedural history warrants some further clarification:
- The engineering firm had been brought in initially as a direct defendant. Plaintiff brought Labor Law claims, including §§ 200, 240(1) and 241(6) against the engineering firm. The engineering firm moved for summary judgment in the main action, which was unopposed, granting them an exit from the main action.
- The remaining direct defendants then commenced a third-party action against a painting subcontractor.
- The painting subcontractor then commenced a second third-party action against the engineering firm, despite their exit from the main action, and asserted claims sounding in common-law contribution and indemnification, bringing the engineering firm back to the party.
- The parties in the second third-party action, the painting subcontractor, and the engineering firm, then execute a stipulation of discontinuance without prejudice, allowing the engineering firm to exit the party for the second time.
- Just when they thought they were out for good, the same painting subcontractor commences a third third-party action against the same engineering firm, sounding in common-law contribution and indemnification.
The engineering firm then moved to dismiss the second third-party action brought against it to leave the party for good, which was ultimately denied.
The defendant engineering firm moved for summary judgment, in the main action, which was unopposed, giving them an exit from the main action. As second-third party defendants, the engineering firm later moved for summary judgment to dismiss the second third-party complaint on the basis that as an engineering firm, they are protected from liability under Labor Law § 241(6) by Labor Law § 241(9), which states:
- No liability for the non-compliance with any of the provisions of this section shall be imposed on professional engineers as provided for in article one hundred forty-five of the education law, architects as provided for in article one hundred forty-seven of such law or landscape architects as provided for in article on hundred forty-eight of such law who do not direct or control the work for activities other than planning and design. This exception shall not diminish or extinguish any liability of professional engineers, architects or landscape architects arising under the common law or any other provision of law.
In further support of their argument, the engineering firm further maintained that it could not be held liable under Labor Law §§ 200 and 240(1) because it lacked the requisite level of supervisory control and authority over the bridge painting work. In response to the common law negligence claims, the engineering firm relied on the Espinal exceptions, arguing it did not launch a force or instrument of harm regarding the subject condition.
The lower Court, Supreme Court, Queens County, denied the motion to dismiss the second third-party action, indicating the second third-party defendant engineering firm failed to eliminate all triable issues of fact and therefore establish its prima facie burden entitling it to summary judgment. The Court cited to provisions of the contract in effect on the date of the incident and deposition testimony submitted, as well as affidavits, that created a conflict regarding whether the engineering personnel on site issued orders to the painting subcontractor on how to apply paint, contributing to the defective condition.
The Appellate Division, Second Department agreed with the lower Court’s opinion, finding that the movant second third-party defendant engineering firm had not eliminated all the triable issues of fact regarding (1) its authority to direct or control the work that allegedly gave rise to the accident, and (2) whether that direction or control contributed to the happening of the accident.
It’s important to remember that the protections provided to, inter alia, engineers enumerated in Labor Law § 241(9) are not automatic and come with their own burdens of proof, and the party invoking these protections must establish that they did not “direct or control the work for activities other than planning and design”.
The Flood decision can be found here.
For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.
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