Labor Law 240 (1) and the Current Trends

•         Owner of Land Beneath Condominium Building Is Not “Owner” or “Agent of Owner” Under Labor Law § 241(6).

The Court of Appeals case of Guryev v. Tomchinsky arises from renovation work being done at the Tomchinsky’s condominium unit and an alleged injury to plaintiff’s eye while operating a nail gun. Plaintiff commenced a personal injury action against the Tomchinskys, as well as his employer, YZ Remodeling, Inc., and the condominium defendants, made up of Trump Corporation and its Board of Managers.

            The condominium defendants moved for summary judgment and were denied on the grounds there were issues of fact.  The Appellate Division reversed the lower court and granted the condominium defendants’ motion for summary judgment, holding that these defendants “were not entities which had an interest in the property and who fulfilled the role of owner by contracting the have work performed for their benefit.”

The threshold issue before the Court of Appeals is whether the condominium defendants are “owners” or “agents of owners” of the Tomchinsky’s apartment so as to trigger liability for failing to “provide reasonable and adequate protection and safety” to workers under Labor Law § 241(6).

The Court of Appeals affirmed the Appellate Division’s decision, reasoning that these defendants “did not determine which contractor to hire, and were not in a position to control the renovation work or to insist that proper safety practices were followed,” and they were therefore free form liability under Labor Law § 241(6). 

Relying in part on its earlier decision in Gordon v. Eastern Ry. Supply, the Guyrev Court distinguished its prior holding in that case on the grounds that here, in the absence of a lessee-lessor relationship, and where the Tomchinskys owned their unit in fee simple absolute, the condominium defendants “are not the owner’s agents within the meaning of the Labor Law.” Here, the Tomchinsky apartment, where the alleged injury occurred, is real property separate and apart from the land beneath the condominium building. In addition, the mandatory Alteration Agreement, signed by Mr. Tomchinsky, did not give the condominium defendants authority to determine which contractors to hire, control the renovation work, or insist that proper safety practices be followed.

In his dissent, Chief Judge Lipman focuses more closely on the terms of the Alteration Agreement which provide that proposed alterations be subject to condominium approval; that such approval could be withheld in the Board’s “sole and absolute discretion;” that the condominium retained power to insist upon compliance with the Industrial Code worker safety provisions; and that the condominium reserves the right to reentry “for the purpose of inspecting [the work] to ensure [the work] is being performed and has been performed in accordance with the [approved] plans.” Judge Lipman also argues that the majority’s decision significantly reduces the avenues of recovery for an injured construction laborer, who “now has no Labor Law cause o action against the unit owner by reason of the single dwelling exemption, no claim against his contractor employer by reason of the workers’ compensation defense, and no statutory claim against the condominium because it is not the title owner of the unit.

•         Court of Appeals Lays Out Four Factors to Determine Whether Activity Falls Within the Definition of “Cleaning” Under Labor Law § 204(1).

This Survey year, the Court of Appeals in Soto v. J. Crew Inc., re-visited the issue of commercial “cleaning” as that term is used in Labor Law  § 240(1) and has been discussed in various other cases.

In Soto, the plaintiff, an employee of a commercial cleaning company hired to provide janitorial services for a J. Crew retail store was injured when he fell from a four-foot-tall ladder while dusting a six-foot-high display shelf. Plaintiff positioned a four-foot-high A-frame ladder on the floor in front of the shelf and both he, and the ladder, fell over while Plaintiff was dusting the shelf, causing him to injure his back, knew, and elbow. Plaintiff commenced a personal injury action against J. Crew and the building’s owner seeking recovery under Labor Law § 240(1). The Supreme Court dismissed plaintiff’s Labor Law claim, on the basis that “the statue does not apply to workers employed on a daily basis to conduct routine commercial cleaning, such as the dusting, sweeping, mopping and general tidying” at issue in this case.

The Appellate Division affirmed, holding that “the dusting of the shelf constituted routine maintenance and was not the type of activity that is protected under the statute.”

The Court of Appeals affirmed the decision of the two lower courts, relying on its 2012 decision in Dahar v. Holland Ladder & Mfgr. Co., which denied recovery to a manufacturing-plant employee injured while cleaning a large wall module at the conclusion of the manufacturing process. In Soto, the Court revisited the window-washing cases it discussed in dicta in Dahar, and distinguished those cases from the instant matter on the grounds that “routine commercial cleaning” was never intended by the Legislature to be covered under the Labor Law. In reaching its decision, the Court recognized four factors that, when viewed in totality, suggest a task cannot be characterized as “cleaning” under the Labor Law, if the task:

(1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project.

            Applying these factors in this case, the Court concluded that the activity undertaken by Soto was not “cleaning” within the meaning of the statute because the dusting of a six-foot-high shelf is the type of routine maintenance conducted in retail stores; the activity did not require specialized equipment or knowledge, and could be completed by a single custodial worker; and the elevation risks involved were those comparable to a person doing ordinary household cleaning.

•         Mechanical Operation of Backhoe by an Allegedly Negligent Co-Worker Does Not Constitute “Falling Object” Under Labor Law § 240(1) Absent the Application of Force of Gravity

In Mohammed v. City of Watervliet, the Appellate Division, Third Department, affirmed the lower courts grant of summary judgment to the defendants on the grounds that plaintiff failed to demonstrate, as a matter of law, that a violation of Labor Law § 240(1) occurred when he was injured by the lowering bucket of a backhoe.

At the time of plaintiff’s injury, plaintiff and two co-workers were in a trench installing a T-connection to an existing water main. The T-connection was being lowered on a chain, which was secured to the bucket of a backhoe. The operator of the backhoe left the cab to check on the placement of the T-connection. While plaintiff worked to secure the T-connection, the bucket of the backhoe was suspended approximately 3 ½ feet above his head.  The operator returned to the cab of the backhoe, and the bucket descended into the trench and crushed plaintiff. Plaintiff and his wife, derivatively, brought a lawsuit against the City pursuant to Labor Law §§ 240(1), 241(6), 200, and common law negligence.

The Appellate Division affirmed the dismissal of plaintiff’s §241(1) and §240(6) claims by the lower court, reasoning that “the statute’s protection does not encompass any and all perils that may be connected in some tangential way with the effects of gravity, but is limited to those types of accidents in which the scaffold, hoist, stay, ladder or other protective device has proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.”

In Mohamed, although plaintiff considers this to be a “falling object” case, arguing that the backhoe was acting as a “hoist,” the Appellate Division held that liability does not extend to “harm caused by an inadequate, malfunctioning, or defectively designed scaffold, stay or hoist unless the injury itself was caused by the application of the force of gravity to an object or person.”  Here, it was determined from the evidence that the backhoe bucket crushed plaintiff not because of a force of gravity, but because of its mechanical operation by an allegedly negligence co-worker. There being no “application of the force of gravity” that led to plaintiff’s injury, the harm that befell plaintiff was a consequence of the usual and ordinary dangers that exist at a construction site. The Appellate Division also affirmed the dismissal of plaintiff’s § 241(6) claim on the grounds that it improperly alleged violations of 12 NYCRR 23-9.4(h)(5) because the load (i.e. the T-connection) was not being suspended over plaintiff’s head at the time of his injury.

•         Glass Pane Installed in Metal Frame Four Feet Off the Ground Was Slated for Demolition, and Therefore Was Not An Object that Required “Securing” For Purposes of Labor Law § 240(1).

In another “falling object” case, the Appellate Division, Second Department, upheld the dismissal by the lower court of plaintiff’s Labor Law § 240(1) claim.

      Plaintiff was employed to demolish the interior partition wall in a commercial building. The plaintiff was holding a glass pane that had been installed in a metal frame built into the wall, while a co-worker attempted to dislodge it from the frame. The glass pane cracked and fell, injuring plaintiff.

      The Court relied on settled law, which holds that the plaintiff must demonstrate that at the time the object fell it was being hoisted or secured, or that it required securing, and that the object fell because of the absence or inadequacy of a safety device. In Maldonado, the glass pane was slated for demolition at the time of the accident, and therefore, was not an object that required securing for the purposes of the statue.