Flying Lumber Keeps Defendant in Labor Law § 200 Case
With co-workers like these, who needs enemies?
In a recent decision, the Appellate Division, Third Department modified a Supreme Court, Ostego County decision that denied plaintiff and defendant’s motions for summary judgment as to plaintiff’s Labor Law §§ 200, 240(1) and 241(6) causes of action.
In James v. Marini Homes, LLC, plaintiff alleges that he was injured while working on a construction site and preparing a “dig” to pour a 4-foot concrete foundation. The foundation floor was located approximately five feet below ground level. To support the concrete foundations, boards cut to the appropriate size for a particular job, would be fastened to concrete forms to create a “slab ledge.” These boards would be passed from a pile at ground level where they were located, to the workers in the foundation dig. Plaintiff alleges that his co-workers, directed by plaintiff’s supervisor and employer, began throwing boards from ground level into the dig, which struck plaintiff. However, plaintiff’s back was turned, and he did not specifically see the board being thrown by his co-worker.
In its decision, the Supreme Court, Ostego County denied all motions for summary judgment as to Labor Law § 240(1), holding that an issue of fact existed as to whether the board fell from an elevation. Additionally, there was a question of fact as to whether the board fell or was thrown, and whether it fell or was thrown from an elevated location (from ground level into the dig). As to Labor Law § 241(6), the lower Court held that a question of fact existed as to whether the worksite was operated in a reasonable manner so as to provide him with adequate protection as it relates to 12 NYCRR § 23-1.7(a) (“overhead protection”). With regard to § 200, the lower Court found questions of fact exist as to the extent of the defendant’s supervision and control of the work which produced the alleged injury, warranting denial of summary judgment.
The First Department disagreed with the lower Court as to the Labor Law §§ 240(1) and 241(6) claims. With regard to § 240(1), granted defendant’s motion, holding that the defendant’s showing that plaintiff was not injured by an object that “fell while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute.” (emphasis as original). With regard to § 241(6), defendant’s showing that the dig area was not “normally exposed to falling material or object” was sufficient to grant defendant’s motion.
As to Labor Law § 200, the First Department agreed with the lower Court, holding that a question of fact existed as to whether the defendant exercised the direct supervision or actual control over the construction site or the work activity bringing about the injury.
It’s interesting how the decision as to the Labor Law § 200 claims center on a question of fact as to whether the building owner defendants exercised the requisite supervision and control over the subject work, when both the lower Court decision and the First Department decision contain facts demonstrating that plaintiff’s employer directed the distribution of the boards. I suppose the submissions in the lower Court were not clear as to who directed the work, but the lower Court’s decision does not focus on the specific testimony from the defendant that raises the question of fact.
The James v. Marini Homes, LLC decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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