Working on Stilts, In the Dark. What Could Go Wrong?
New York is the “City that Never Sleeps” that also happens to never be short on fact patterns for Labor Law cases. In this post, we’re taking a break from ladders and talking about stilts.
In Calderon v. Gilbane Residential Constr., LLC, 2024 NY Slip Op 32299(U), Plaintiff was employed as a carpenter, performing metal form work at a construction site. For approximately two and a half years he had been using stilts on a daily basis to perform his work without incident. On the date of the subject incident, he was tasked with installing wooden boxes inside the framing of windows and was instructed to use stilts to reach the subject windows. Plaintiff adjusted the stilts, placing him approximately three or four feet off of the ground to perform his work. After completing his work on the date of the subject incident, he walked – on his stilts – towards a hallway to obtain additional materials. The hallway lacked artificial lighting, and got darker as he walked further away from the widow where he was working, which provided light to his workspace. “High up and in the dark,” plaintiff failed to notice that there were metal rods on the ground, protruding from the bottom of a wall. He then tripped over the rods, falling to the ground.
Plaintiff then brought suit, alleging violations of common law negligence, as well as violations of Labor Law §§ 200, 240(1) and 241(6). The Labor Law § 241(6) claim is predicated on several Industrial Code violations, including, inter alia, §§ 23-1.7(e) (tripping hazards) and 23-5.22(f) (stilts and floor obstructions). Notably, plaintiff did not allege § 241(6) as predicated on a violation of Industrial Code § 23-1.30 (illumination and safe working conditions).
At the conclusion of discovery, plaintiff moved for summary judgment on his Labor Law §§ 200 and 241(6) causes of action, with the latter predicated on violations of Industrial Code §§ 23-1.7(e) and 23-5.22(f). Plaintiff additionally moved for leave to amend the Bill of Particulars to add to the allegations a violation of Industrial Code § 23-1.30 in further support of his § 241(6) claim.
Amending the Bill of Particulars
Plaintiff moves for leave to amend the Bill of Particulars to add an allegation that defendants’ violation of Industrial Code § 23-1.30 caused the subject incident, specifically due to insufficient illumination. Plaintiff argues that the defendants were on notice of his claim of insufficient illumination, and that permitting the amendment would not prejudice the defendants. Defendants argued that they would be prejudiced, because none of the Industrial Code violations that were alleged by plaintiff involved insufficient illumination, and the Bill of Particulars was served approximately two and a half years ago, discovery was completed, and the note of issue was filed without the defendants knowing the issue would be raised.
In its decision, the Supreme Court, New York County agreed with plaintiff, noting that plaintiff had already established his theory of liability based on inadequate lighting and there are no new factual allegations regarding the inadequate lighting theory of liability. As such it granted the portions of plaintiff’s motion seeking leave to amend the Bill of Particulars to include violations of Industrial Code § 23-1.30.
Plaintiff’s Labor Law Claims & Common Law Negligence Claim
Plaintiff’s Labor Law § 240(1) Claim
At the outset, we note that plaintiff conceded he could not maintain a Labor Law § 240(1) cause of action, and the portions of defendants’ motion for summary judgment to dismiss the § 240(1) claim were granted.
Plaintiff’s Labor Law § 200 & Common Law Negligence Claims
The defendants here are the General Contractor and the Drywall Contractor, who both made individual motions for summary judgment to dismiss all of plaintiff’s claims. At the outset, plaintiff conceded that he could not maintain these causes of action against the General Contractor, but argued that at the very least, questions of fact existed as to the Drywall Contractor and whether they directed or controlled the work at the subject premises. The Court agreed with plaintiff, noting that the Drywall Contractor failed to eliminate questions of fact as to whether it supervised plaintiff’s work because he testified that instructions were received from the Drywall Contractor, though they were translated by his employer, who is not a party to the litigation. The Court then granted the General Contractor’s motion to dismiss these claims, and denied the Drywall Contractor’s motion as to these claims.
Plaintiff’s Labor Law § 241(6) Claim
Plaintiff’s Labor Law § 241(6) claim is predicated on violations of Industrial Code §§ 23-1.7(e), 22-5.22(f), and 23-1.30 (after granting leave to amend the Bill of Particulars).
Industrial Code § 23-1.7(e) provides that passages and other area where persons work shall be kept free from “obstructions or conditions which could cause tripping”. Industrial Code § 23-5.22(f) provides that stilts “shall be used only on even floor surfaces kept free from obstructions.” The Supreme Court, New York County held that plaintiff made a prima facie showing that the area where he walked, on stilts was not free from obstructions and tripping hazards because the metal rods were present at the time of the subject incident.
In opposition, defendants failed to raise a triable issue of fact, and failed to sufficiently show that the rods protruding from the wall were integral to the work because they could not show what purpose, if any, the rods served. The defendants also failed to show that they took appropriate protective measures to mitigate the avoidable danger in the protruding rods.
With regard to Industrial Code § 23-1.30, the statute provides, in part, that “illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction”. The Supreme Court, New York County found that plaintiff met his prima facie burden by establishing that additional lighting could have been present in the subject area, and defendants failed to properly illuminate the area with sufficient lighting.
As a result, the Court granted plaintiff’s motion for summary judgment as to his Labor Law § 241(6) claim as predicated on violations of the above-referenced Industrial Code Sections.
As of the date of this writing, the time to appeal the decision has not yet expired.
The Calderon decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.
