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OWNERS BEWARE: The First Department Expands The Boundaries Of “Construction Sites” To Bring More Cases Within The Scope Of Labor Law § 240

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  • Posted on: Dec 15 2017

Certain issues regarding Labor Law §240 were discussed in “Be Helpful at Your Own Peril”, an article posted on this Blog on October 20, 2017.

Again, Labor Law § 240 was enacted, inter alia, to protect construction workers from height related injuries.  In discussing the purpose behind Labor Law § 240, the New York Court of Appeals stated:

The legislative purpose behind this enactment is to protect workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor (1969 NY Legis Ann, at 407), instead of on workers, who are scarcely in a position to protect themselves from accident.

(Rocovich v. Consolidated Edison Company, 78 N.Y.2d 509, 513 (1991) (citations and internal quotation marks omitted).)  An owner, among others, can be held strictly liable for injuries resulting from, and has a non-delegable duty to comply with, Labor Law § 240.  As the Rocovich Court stated:

It is settled that section 240(1) is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed.  Thus, we have interpreted the section as imposing absolute liability for a breach which has proximately caused an injury. Negligence, if any, of the injured worker is of no consequence. In furtherance of this same legislative purpose of protecting workers against the known hazards of the occupation, we have determined that the duty under section 240(1) is nondelegable and that an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control.

(Rocovich, 78 N.Y.2d at 513 (citations and internal quotation marks omitted) (emphasis in original).)

A judicial determination that a personal injury case falls within the purview of Labor Law § 240 (as opposed to simple negligence) can have significant implications on a commercial property owner (and, under certain circumstances on a residential property owner as discussed in “Be Helpful at Your Own Peril”) as well as a contractor.

Hoyos v. NY-109 Avenue of the Americas, LLC, 2017 NY Slip Op 08717, decided by the First Department on December 14, 2017, and in which summary judgment was granted to the plaintiff on his Labor Law § 240 claim, expanded the reach of Labor Law § 240 by broadly defining the perimeter of a construction site.[1]  The Owner in Hoyos owned a 42-story commercial office building (the “Building”) in Manhattan. The plaintiff in Hoyos was a painter employed by a subcontractor involved with renovations (the “Project”) for MetLife, a tenant on several floors of the Building.

As is frequently the case, the construction workers were not permitted to enter the Building from the main entrance.  Pursuant to the operative lease, certain construction project “rules and regulations set forth standards and procedures that had to be followed so as to insure that other tenants in the building are not inconvenienced by the construction.”  The lease required, inter alia, “that all workers of the various contractors had to use the loading dock and freight elevator at all times”, and that none of the contractors “set[] up ‘shop’ outside a particular tenant’s area, unless the owner approved of an alternate ‘shop’ area”….”

Plaintiff, Hoyos, sustained injuries after falling off an elevated and “overcrowded” loading dock, while standing in line with other construction workers to sign a security log and obtain a pass allowing him to enter the building where he was painting.  The loading dock was four feet high and had no guardrails, ropes or any other indication of “where its platform ended and the ledge began.”  The dock was located in the service entrance of the Building and was the only designated point of ingress for the construction workers working on the Project.

In determining that Labor Law § 240 was applicable despite the fact that Hoyos “was not ‘working’ at the time of the accident and he was in his street clothes”, the Hoyos Court found:

Here, plaintiff, who had been working on this construction project for a month, was following the rules and regulations of the owner and building protocol that he wait outside a closed, gated service entrance until it was opened by the building’s security staff.  Once the gate was opened, and after proceeding through the gate, he could not travel directly upstairs to whichever floor he was assigned to paint.  He was required to line up with other construction personnel and use the crowded, elevated loading dock to gain access into the building at the start of each workday and throughout the day whenever he needed to retrieve supplies.

The Hoyos Court noted that Labor Law § 240 does not “use or define the term ‘construction site’ or otherwise expressly limit its protections in that way.”  In reasoning that expanding the Hoyos construction site to include the loading dock area in the Building, the Hoyos Court reasoned that:

Plaintiff had no choice but to adhere to the owner’s work site policy, and he was not provided with a safer or different means of gaining access to any other part of the building, including the area that MetLife was renovating in accordance with the terms of its lease with the owner.  Since plaintiff’s painting assignment related to a construction/renovation project within the building plaintiff was unquestionably engaged in an enumerated activity within the meaning of Labor Law § 240(1).

In determining that an expansive view of the “job site” was appropriate and that “Labor Law § 240(1) should be construed with a commonsense approach to the realities of the workplace at issue” (citations and internal quotation marks omitted), the Hoyos Court found that “[t]he building as a whole, and in particular those parts, which must be accessed by a worker to do his or her job, cannot be discounted as a job site simply because it is multi-storied and the dock is not in the immediate vicinity of the floor(s) above that plaintiff was assigned to paint.”  Therefore, the argument that the injury did not occur at a construction site “places an unintended limitation on Labor Law § 240(1).”  Nor was the Hoyos Court moved by the argument that Plaintiff “was not actually engaged in work involving a gravity-related risk” (citations omitted) or that the loading dock area may have been in compliance with OSHA.  Similarly, because the Hoyos Court found that Labor Law § 240(1) was applicable, the issue of plaintiff’s comparative negligence was not deemed to be relevant.

Thus, “under the lease [the owner] had the right and ability to provide safer access to the construction workers using the loading dock” and “[p]laintiff’s fall was a direct consequence of the owner’s failure to provide adequate protection against the risk of such fall.”

Two Justices dissented, in part, and would have dismissed the Labor Law § 240 claim.  In concluding that the scope of Labor Law § 240(1)’s reach should not be extended as held by the majority, the dissent argued:

The majority, in invoking Labor Law § 240(1) in this case, has expanded its application to include an injured worker who was not at the work site and not engaged in any enumerated activity under the statute at the time of his injuries, and a fall from height which the Court of Appeals has deemed not to constitute a significant elevation differential to warrant application of section 240(1).  This is a substantial departure from the legislature’s clear intent in promulgating section 240(1) and the case precedents concerning the statute issued by the Court of Appeals.

TAKEAWAY

Because there was a lengthy, two Justice dissent, the defendants may seek to appeal the Hoyos decision to the Court of Appeals and, thus, this may not yet be over.

In the meantime, owners and contractors should be mindful of the First Department’s willingness to expand a plaintiffs’ rights under the Labor Law.  Deciding Hoyos as a Labor Law case (as opposed to a simple negligence case), precluded the defendants from asserting plaintiff’s comparative negligence to potentially reduce any damage award.  Further, any decision expanding the scope of the reach of Labor Law § 240 is troublesome for Owners and contractors.  Owners and contractors should be extra vigilant in making sure that actual work sites, as well as their expanded surrounds, are safe for workers. Perhaps the Court will accept liability for any damages occasioned by the slippery slope created by its decision.  

 

[1]  It should be noted that the Hoyos plaintiff asserted a common law negligence claim against the Hoyos defendants and, therefore, would not have been left without a remedy had the Labor Law claim been dismissed.

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