New Developments In New York Labor Law Sections 200, 240

1
New Developments InNew York Labor Law Sections
200, 240 241

• Stephen Wellinghorst, Esquire
• Wellinghorst Fronzuto, L.L.C.
• 4 Franklin Avenue
• Ridgewood, N.J. 07450
• [phone]

New York Office 10 Potter Lane Suffern, N.Y.
10901
2
Table of Contents

• New York Labor Law Section 200
• New York Labor Law Section 240
• New York Labor Law Section 241
• Contribution and Indemnification Issues

3
New York Labor Law Section 200Purpose

• Section 200 merely codifies common-law duty of
  owner or general contractor to provide safe place
  for workers at construction site.

4
New York Labor Law Section 200History and
Evolution

• Employer originally had a common law duty to
  provide a safe workplace.
• Section 200 extended the common law by including
  within workplace, tools and appliances.
• Section 200 has also made the duty non-delegable.

5
New York Labor Law Section 200Application of
Section 200

• Section 200 only applies where there is actual or
  constructive notice of an alleged dangerous
  condition and control by an entity.
• EVERYONE GETS SUED!!

6
New York Labor Law Section 200Issues Relating to
Direction and Control

• Generally, Section 200 only applies to entities
  who are able to exercise control over work.
• Party charged with violation of Section 200 must
  be shown to have exercised sufficient control
  over work being performed to have been in
  position to correct or avoid unsafe condition.
  Rosas v Ishack, 631 N.Y.S.2d 417 (2nd Dept.
  1995).
• Defendant was entitled to summary judgment in
  action under Section 200 since its contract with
  owner was limited to demolition and construction
  of 2 walls, without any right to control
  worksite. Saaverda v East Fordham Rd. Real Estate
  Corp., 649 N.Y.S.2d 416 (1st Dept. 1996).

7
New York Labor Law Section 200Notice Issues

• The common-law duty to provide a safe place to
  work is embodied in subdivision 1 of Section 200
  and to be charged with negligence for breach of
  this duty, an owner must have notice, either
  constructive or actual, of the dangerous
  condition which caused the accident.

8
New York Labor Law Section 200Notice Issues,
Continued

• There is no liability under Section 200 where the
  alleged dangerous condition is open and obvious.
• See e.g. Panetta v. Paramount Communs., 681
  N.Y.S.2d 85 (2nd Dept. 1998). Liability for
  common-law negligence and violation of Section
  200 did not attach, because dangerous condition
  complained of was open and obvious, where
  plaintiff hit his head on overhead pipe that was
  part of scaffolding at work site.

9
New York Labor Law Section 240Statute

• All contractors and owners (with the exception of
  single and two family homeowners) who are
  performing erection, demolition, repairing,
  altering, painting or cleaning of a building
  shall be required to furnish scaffolding, hoists,
  stays, ladders and other devices to all persons
  performing such work.

10
New York Labor Law Section 240Purpose and
Requirements

• The purpose of this law is to protect workers
  engaged in construction activities involving
  heights by mandating the use of protective
  equipment and charging the responsibility for
  provision of such equipment to the owner of the
  site. The law exempts single and two family
  homeowners from its applicability unless such are
  exercising control over the work. Also exempt are
  professional engineers and architects so long as
  they are not directing the work being performed.

11
New York Labor Law Section 240Purpose and
Requirements, Continued

• In addition, the law requires that scaffolding
  over 20 feet high is mandated to have a safety
  rail that is at least 34 inches above the floor
  of the platform and must be fastened to avoid
  swaying. Finally, all scaffolding must be able
  to bear weight four times that which will be
  placed on it when in use.

12
New York Labor Law Section 240History and
Evolution

• The laws origins trace back to 1885 which made
  the failure to provide scaffolding a misdemeanor
  for the employer. It has been amended multiple
  times over the years to increase the scope of the
  statute and protection afforded to the workers.
  In 1921, it was amended to require lings,
  hangers, blocks, pulleys, braces, irons and ropes
  as well as the original requirements of
  scaffolding.

13
New York Labor Law Section 240History and
Evolution, Continued

• The duties imposed under the statute are
  non-delegable and an owner or general contractor
  will not escape liability by delegating the
  responsibility to other contractors or
  subcontractors. See e.g. Kelly v. Diesel
  Construction, 35 N.Y.2d 1 (1974), Rocha v. State
  of New York, 45 A.D.2d 633 (3d Dept. 1974)

14
New York Labor Law Section 240History and
Evolution, Continued

• Section 240 was intended by legislature to place
  ultimate responsibility for building practices on
  property owners and contractors not the workers
  who are scarcely in a position to protect
  themselves from accidents. Lombardi v. Stout, 80
  N.Y.2d 290 (1992). (Because the unions in New
  York are so weak.)

15
New York Labor Law Section 240History and
Evolution, Continued

• Liability is mandated against an owner or
  contractor who fails to provide appropriate
  safety devices, regardless of what the terms of
  the contract provide or what the custom and
  practice in the construction industry may be. If
  evidence establishes absence of safety devices,
  Section 240 has been violated. Zimmer v. Chemung
  County Performing Arts, 65 N.Y.2d 513 (1985)

16
New York Labor Law Section 240Liability of
Particular Entities

• Although the law exempts single and two family
  homeowners from its applicability unless such are
  exercising control over the work. Also exempt are
  professional engineers and architects so long as
  they are not directing the work being performed.
  However, such persons can still be held liable
  under common law or other provisions of the law.

17
New York Labor Law Section 240Activities Covered
by Statute Injury Related to Force of Gravity

• ROCOVICH V. CONSOLIDATED EDISON, 78 N.Y.2d 509
  (1991) CASE INVOLVED ROOFER WORKING ON A ROOF
  WHO SLIPPED AND FELL INTO 12 TROUGH WHICH RAN
  ALONG THE ROOFLINE. PLAINTIFF ARGUED THAT THERE
  WAS SOME ELEVATION THUS SECTION 240 APPLIED.
  COURT HELD THAT 12 INCH ELEVATION DIFFERENTIAL
  DID NOT MANDATE USE OF PROTECTIVE DEVICES UNDER
  SECTION 240. 12 NOT ENOUGH TO TRIGGER SECTION
  240.

18
New York Labor Law Section 240Activities Covered
by Statute Injury Related to Force of Gravity

• COURT ESTABLISHED APPLICATION OF STATUTE WHEN
  DIFFERENCE IN HEIGHT BETWEEN WORKER AND LEVEL
  BELOW WORKER OR WHEN DIFFERENCE IN HEIGHT BETWEEN
  WORKER AND MATERIALS BEING HOISTED OR SECURED
  ABOVE WORKER.
• COURT ALSO RULED THE HEIGHT ALONE IS NOT THE SOLE
  CRITERIA FOR APPLICATION OF SECTION 240.
• APPLICABILITY DETERMINED CASE BY CASE.

19
New York Labor Law Section 240Activities Covered
by Statute Special Hazard

• AlROSS V. CURTIS PALMER, 81 N.Y.2d 494 (1993)
  COURT EXPANDED ROCOVICH TO REQUIRE THAT INJURY
  MUST HAVE A DIRECT CONNECTION TO DANGERS POSED BY
  RISKS ASSOCIATED WITH GRAVITY BEFORE LIABILITY
  ATTACHES (PLAINTIFF WORKING ON SCAFFOLDING BUT
  DID NOT FALL FROM SUCH).
• COURT HELD THAT SECTION 240 WAS DESIGNED TO
  PREVENT THOSE TYPES OF ACCIDENTS IN WHICH THE
  SCAFFOLD ETC PROVED INADEQUATE TO SHIELD THE
  WORKER FROM HARM.

20
New York Labor Law Section 240 Activities
Covered by Statute Special Hazard

• NARDUCCI V. MANHASSET BAY ASSOCIATES, 96 N.Y.2d
  (2001) PLAINTIFF INJURED WHEN GLASS FELL UPON
  HIM WHILE STANDING ON A LADDER COURT FOUND THE
  LIABILITY UNDER SECTION 240 CONTINGENT UPON THE
  EXISTENCE OF A HAZARD CONTEMPLATED BY THE
  STATUTE. AS SUCH, FALLING OBJECTS WOULD BE
  COVERED UNDER SECTION 240 IF RELATED TO ITEMS
  BEING HOISTED OR SECURED OR IF IT IS PART OF
  BUILDING BEING WORKED ON.

21
New York Labor Law Section 240 Activities
Covered by Statute Height Specifications

• SECTION 240 DOES NOT PROVIDE FOR HEIGHT
  SPECIFICATION FOR APPLICABILITY OF STATUTE
• THOMPSON V. ST. CHARLES CONDOMINIUMS, 756
  N.Y.S.2d 530 (1ST Dept. 2003) PLAINTIFF WAS
  MASON TENDER WHO PLACED BRICKS AND MORTAR ON FOUR
  FOOT HIGH SAWHORSE SCAFFOLD FOR BRICK LAYER TO
  USE. BRICK LAYER CLIMBED SCAFFOLD WHICH
  COLLAPSED AND BLOCK FELL ON PLAINTIFF ON GROUND.
  COURT HELD THAT THERE IS NO DE MINIMUS HEIGHT FOR
  SECTION 240 TO APPLY. COURT FOUND APPLICABILITY
  OF 240 BECAUSE OF FAILURE OF PRESENCE OF SAFETY
  DEVISE RATHER THAN HEIGHT.

22
New York Labor Law Section 240 Activities
Covered by Statute Typical Hazards

• COURTS HAVE FOUND APPLICABILITY OF SECTION 240 IN
  THE FOLLOWING SITUATIONS
• ELEVATED RAMPS
• FIRE ESCAPE LADDER FALL OFF BUILDING
• PAINTING DIVING BOARD OF POOL
• LADDERS (BOTH SECURED AND UNSECURED)

23
New York Labor Law Section 240Devices Involved
with StatuteTrucks

• COURT DETERMINED THAT FALLING FROM A CONSTRUCTION
  VEHICLE IS NOT AN ELEVATED RISK CONTEMPLATED BY
  SECTION 240 (BOND V. YORK HUNTER CONSTRUCTION, 95
  N.Y.2d 993 (2000).

24
New York Labor Law Section 240 Devices Involved
with StatuteTrucks

• CASES ALSO HOLD THAT LOADING AND UNLOADING OF
  TRUCKS IS NOT ELEVATED RISK UNDER SECTION 240
  (CABEZAS V. CON ED, 296 A.D.2d 522 (2d Dept.
  2002))
• MOST CASES INVOLVING TRUCKS ARE RESOLVED IN FAVOR
  OF DEFENDANTS UNLESS TRUCK BEING USED AS PLATFORM
  TO PERFORM ELEVATED WORK.

25
New York Labor Law Section 240 Devices Involved
with StatuteStairways and Fixed Structures

• COURTS HAVE CONSISTENTLY HELD THAT SECTION 240
  DOES NOT APPLY TO SLIP AND FALLS IN STAIRWAYS AS
  STAIRS ARE NOT CONSIDERED SAFETY DEVICES IF
  PERMANENT PART OF BUILDING (MILANESE V.
  KELLERMAN, 41 A.D.3D 1058 (3D DEPT. 2007)
• THE CONTROLLING FACTOR IN THESE CASES IS NOT
  WHETHER THE DEVICE IS PERMANENT BUT WHETHER IT
  SERVES THE PURPOSE OF PROVIDING AN ELEVATED
  PLATFORM. (SOMETIMES STAIRS ARE CONSIDERED
  ELEVATED WORK PLATFORMS.)

26
New York Labor Law Section 240 Devices Involved
with StatuteElevators

• GENERALLY, SECTION 240 WILL NOT APPLY EVEN THOUGH
  ELEVATORS ARE INHERENTLY HEIGHT RELATED.

27
New York Labor Law Section 240Risks Covered by
Statute

• SECTION 240 RELATES NOT ONLY TO CONSTRUCTION OF
  BUILDING BUT DEMOLITION, REPAIR, ALTERATION,
  CLEANING AND OTHER MAINTENCE RELATED WORK

28
New York Labor Law Section 240 Risks Covered by
Statute, Continued

• BUSTAMANTE V. CHASE MANHATTAN, 241 A.D.2d 327
  (1ST Dept. 1997) PLAINTIFF FELL OFF LADDER WHEN
  CLEANING TOPS OF PARTITIONS SECTION 240
  APPLICABLE.
• VERNUM V. ZILKA, 241 A.D.2d 885 (3d Dept. 1997)
  PLAINTIFF SHOVELING SNOW OFF ROOF CONSIDERED
  CLEANING AND SECTION 240 APPLICABLE WHEN INJURY
  OCCURRED.

29
New York Labor Law Section 240 Risks Covered by
StatuteAlteration of Premises

• COURT RULINGS ON THIS TYPE OF WORK HAVE FOUND
  THAT SECTION 240 IS APPLICABLE IF THE WORK BEING
  PERFORMED RESULTS IN A SUBSTANTIAL PHYSICAL
  CHANGE TO THE BUILDING OR ITS COMPONENTS (JOBLON
  V. SOLO, 91 N.Y.2d 457 (2004)).

30
New York Labor Law Section 240 Risks Covered by
StatuteWork Associated with Construction

• CASES FIND APPLICATION OF SECTION 240 IN SUCH
  SITUATIONS AS REPAIRING BACK HOE DURING
  CONSTRUCTION OF PIPELINE (COVEY V. IROQUOIS GAS,
  89 N.Y.2d. 952 (1997)), INSPECTION OF
  CONSTRUCTION SITE (MCMANN V. HSM PACKING CORP.,
  755 N.Y.S.2d 186 (4TH Dept. 2004), PERFORMANCE OF
  SECURITY GUARD DUTIES (SPAULDING V. BAY RIDGE,
  759 N.Y.S.2d 179 (2d Dept. 2005).

31
New York Labor Law Section 240 Risks Covered by
StatuteRepair and Maintenance

• GENERALLY, ROUTINE MAINTENANCE IS NOT COVERED
  UNDER SECTION 240 UNLESS IT IS AN INTEGRAL PART
  OF SOME OTHER COVERED ACTIVITY I.E. MAINTENCE
  WORKER INJURED IN ACTIVE CONSTUCTION SITE.

32
New York Labor Law Section 240Liabilities of
Particular Entities

• SECTION 240 IS A CATEGORY OF PREMISES LIABILITY.
  ABSENT A SHOWING THAT DEFENDANT COULD NOT CONTROL
  THE ACTIVITIES ASSOCIATED WITH PLAINTIFFS WORK,
  LIABILITY CANNOT ATTACH. HOWEVER, IF WORK BEING
  DONE IS INTEGRAL AND NECESSARY TO THE
  CONTEMPLATED CONSTRUCTION, IT IS COVERED.

33
New York Labor Law Section 240Liabilities of
Particular Entities, Continued

• SECTION 240 APPLIES TO ALL CONTRACTORS, OWNERS
  AND THEIR AGENTS WHO ARE INVOLVED IN THE
  DEMOLITION, CONSTRUTION, REPAIR OF BUILDINGS AND
  STRUCTURES. APPLIES TO ALL OWNERS REGARDLESS OF
  DEGREE OF CONTROL OR EVEN WHETHER OWNER
  CONTRACTED FOR WORK OR BENEFITTED FROM IT (GORDON
  V. EASTERN RAILWAY SUPPLY, 82 N.Y.2d 555 (1993)).

34
New York Labor Law Section 240Liabilities of
Particular Entities, Continued

• STATUTE WILL NOT APPLY IF PERFORMED WITHOUT
  CONSENT, IN VIOLATION OF LEASE AND STATUTE
  (SANATASS V. CONSOLIDATED INVESTING CO., 38
  A.D.3d 332 (1ST Dept. 2007)).

35
New York Labor Law Section 240Liabilities of
Particular Entities, Continued

• SECTION 240 IS NON-DELEGABLE FOR GENERAL
  CONTRACTORS. CONSTRUCTION MANAGERS MAY BE HELD
  LIABLE IF HAVE DUTY TO CONTROL THE WORK GIVING
  RISE TO THE INJURY (KENNY V. GEORGE A FULLER CO.,
  87 A.D. 183 (2d Dept. 1982) PINO V. IRVINGTON
  UNION FREE SCHOOL DISTRICT, 43 A.D.3d 1130 (2d
  Dept. 2007)).

36
New York Labor Law Section 240Liabilities of
Particular Entities, Continued

• INDEPENDENT PRIME CONTRACTORS NOT LIABLE UNDER
  SECTION 240 FOR INJURIES SUSTAINED OUTSIDE THE
  SCOPE OF WORK INCLUDED IN CONTRACT. SAME APPLIES
  TO SUBCONTRACTORS ON A PROJECT (AVERSANO V. JWH
  CONTRACTING LLC., 37 A.D.3d 745 (2d. Dept.
  2007)).
• (BUT GOOD LUCK GETTING OUT ONCE YOUR COMPANY IS
  NAMED.)

37
New York Labor Law Section 240Defenses
AvailablePlaintiffs Own Conduct

• IF ACTIONS OF PLAINTIFF ARE SOLE PROXIMATE CAUSE
  OF INJURY, SECTION 240 INAPPLICABLE (WEININGER V
  HAEDORN, 91 N.Y.2d 958 (2004)). HOWEVER, VERY
  FACT SPECIFIC AND COURTS DO NOT LIKE TO RULE THIS
  WAY.

38
New York Labor Law Section 240Defenses
AvailableProvision of Safety Equipment

• PLAINTIFF INJURY WOULD NOT HAVE OCCURRED IF USED
  SAFETY EQUIPMENT PROVIDED (LENIAR V. METRO
  TRANSIT AUTHORITY, 37 A.D.3d 425 (2d Dept. 2007))
• GENERALLY QUESTION OF WHETHER SAFETY DEVICE WAS
  ADEQUATE IS QUESTION OF FACT UNLESS ESTABLISHED
  AS MATTER OF LAW THAT COLLAPSED, WAS DEFECTIVE OR
  WAS IMPROPERLY PLACED (NORWOOD V. WHITING-TURNER
  CONSTRUCTION, 40 A.D.3d 718 (2d Dept. 2007))

39
New York Labor Law Section 240Defenses
AvailableRecalcitrant Worker

• WHEN DEFENDANT CAN SHOW THAT ACCIDENT SOLELY
  CAUSED BY REFUSAL OF PLAINTIFF TO USE SAFETY
  EQUIPMENT, SECTION 240 INAPPLICABLE (SMITH V.
  HOOKER, 89 A.D.2d. 361) CHIMBORAZO V. WCL
  ASSOCIATES, 37 A.D.3d 394 (2d. Dept. 2007)).

40
New York Labor Law Section 240Defenses
AvailableSuperseding Cause

• PROVISION OF EVIDENCE THAT EVENT CAUSING
  PLAINTIFF INJURY NOT FORSEEABLE HANDLED BY COURT
  IN SAME MANNER AS TYPICAL NEGLIGENCE MATTERS.

41
New York Labor Law Section 240Defenses
AvailableEngineer and Architect Exception

• SECTION 240 INAPPLICABLE TO THESE PERSONS SO LONG
  AS NOT DIRECTING OR CONTROLLING WORK ACTIVITIES
  (HAMBY V. HIGH STEEL STRUCTURES INC., 134 A.D.2D
  884 (4TH Dept. 2004)).

42
New York Labor Law Section 240Summary Judgment
and Dismissal

• CONSTRUCTION MANAGER ENTITLED TO SUMMARY JUDGMENT
  WHEN ROLE WAS ONLY ONE OF GENERAL SUPERVISION
  (DELAHAYE V. ST. ANNES SCHOOL, 40 A.D.3d 679 (2d
  Dept. 2007))

43
New York Labor Law Section 240Summary Judgment
and Dismissal,Continued

• GENERAL CONTRACTOR ENTITLED TO SUMMARY JUDGMENT
  WHEN PLAINTIFF ACCIDENT NOT PROXIMATELY CAUSED BY
  STATUTE VIOLATION AND PLAINTIFF FAILED TO PROVIDE
  SUFFICIENT EVIDENCE TO RAISE QUESTION OF FACT
  (CAMLICA V. HANSSON, 40 A.D.3d 796 (2d Dept.
  2007)).

44
New York Labor Law Section 240Evidentiary Issues

• INCIDENT REPORT MIGHT BE ADMITTED AS A BUSINDESS
  RECORD AT TRIAL (BUCKLEY V. J.A. JONES/GMO, 38
  A.D.3D 461 (1ST Dept. 2007). (I PREFER THAT
  INCIDENT REPORTS ARE PREPARED.)

45
New York Labor Law Section 241Purpose

• 241 imposes nondelegable duty upon all owners and
  contractors to provide certain safe
  appurtenances, and safe place to work, for all of
  employees at construction site
• apparent intention of legislature to place
  ultimate responsibility for injury on those who
  are in best position to insure safety of work
  place
• owner's duty to insure that scaffolding employed
  at work site is constructed, placed, and operated
  so as to give proper protection to employees is
  wholly independent of owner's actual control or
  supervision of workplace

46
New York Labor Law Section 241History and
Evolution

• Prior to 1962 the section was phrased in language
  substantially the same as that appearing today.
• In 1962 the Legislature made direction or control
  a prerequisite to strict liability.
• However, in 1969 the section was amended as it
  now appears with a reimposition of the rule of
  strict liability.

47
New York Labor Law Section 241History and
Evolution, Continued

• Owners of one and two family dwellings are
  exempted from the strict liability of Section 241
  where they exercise no direction or control.
• Owners of one and two family dwellings will, of
  course, be liable in any situation where they
  direct or control the work, or where negligence
  may otherwise be proved against them.

48
New York Labor Law Section 241Application of
Section 241

• Applicable to Construction, excavation, or
  demolition work.
• Legislature sought to protect workers from
  industrial accidents specifically in connection
  with construction, demolition, or excavation
  work. If the work constitutes maintenance,
  then plaintiff is not entitled to base a claim
  under Section 241. Nagel v. DR Realty Corp., 99
  N.Y.2d. 98 (Ct. of App. 2002).
• If defendant can show that plaintiffs injuries
  did not arise from construction, excavation or
  demolition work, then defendant is entitled to a
  dismissal of plaintiffs Section 241 claims. See
  e.g. Holler v. City of New York, 38 App. Div. 3d
  606 (2nd Dept. 2007).

49
New York Labor Law Section 241Application of
Section 241, Continued

• There must be control, direction, and
  supervision.
• If the owner or general contractor does not
  exercise authority or supervisory control over
  the work site, plaintiffs Section 241 claims may
  be dismissed. See e.g. Berg v. Albany Ladder
  Co., Inc., 836 N.Y.S.2d 720 (3rd Dept. 2007), and
  Burnett v. Waterford Custom Homes, Inc., 838
  N.Y.S.2d 286 (4th Dept. 2007).

50
New York Labor Law Section 241Violations of
Local Code as a Means of Liability

• Plaintiff must establish a causal connection
  between the code violated and the happening of
  the accident.
• Violation of the code must be a substantial
  factor in the happening of the accident.
• Whether rule applies to the facts is a threshold
  issue to be addressed by the court as a matter of
  law.
• Whether the code was violated and was a proximate
  cause of the accident will generally be a
  question of fact to be determined by a jury.

51
New York Labor Law Section 241Violations of
Local Code as a Means of Liability, Continued

• See e.g. Kreamer v. Amsterdam High School, 716
  N.Y.S.2d 452 (3rd Dept. 2000). Court held that
  code was applicable and was violated. The
  violation was a proximate cause of plaintiffs
  injury.

52
New York Labor Law Section 241Notice Issues

• As a general rule, lack of actual or constructive
  notice of a dangerous condition is not a defense
  to a claim under Section 241. See e.g. Amirr v
  Calcagno Constr. Co., 684 N.Y.S.2d 280 (2nd Dept.
  1999), and Rizzuto v L.A. Wenger Contr. Co., 670
  N.Y.S.2d 816 (1998).

53
New York Labor Law Section 241Summary Judgment
Issues

• Where a factual issue or dispute exists, summary
  judgment must be denied.
• Where there is no evidence of control, direction
  or supervision, summary judgment is appropriate.
  See e.g. Delahaye v. Saint Anns School, 836
  N.Y.S.2d 233 (2nd Dept. 2007). Court held that
  construction manager entitled to summary judgment
  as the record demonstrated that the role of the
  construction manager was only one of general
  supervision, which was insufficient to impose
  liability.

54
New York Labor Law Section 241Covered Activities
and People

• Section 241 covers work which involves
  construction or excavation.
• Injury which occurs while performing activity not
  involved in construction or excavation is not
  covered by section 241. See e.g. Malczewski v
  Cannon Design, Inc., 510 N.Y.S.2d 339 (4th Dept.
  1986). Court held that employee injured while
  moving computer equipment was not performing
  construction or excavation, and section 241 did
  not apply.

55
New York Labor Law Section 241Covered Activities
and People

• Protection of Section 241 extends to employees
  present at worksite, even if they are not engaged
  in actual construction. Williamson v Borg
  Florman Dev. Corp., 594 N.Y.S.2d 778 (1st Dept.
  1993).
• Neither plaintiff's allegedly improper conduct in
  obtaining his employment nor his status as
  illegal alien barred him from maintaining suit
  for personal injuries based on asserted
  violations of Section 241. Mazur v Rock-McGraw,
  Inc., 666 N.Y.S.2d 939 (2nd Dept. 1998).

56
New York Labor Law Section 241Covered Activities
and People, Continued

• Plaintiff, employee of company retained by
  construction manager to inspect steel work and
  fireproofing at construction project, was person
  entitled to protection of Section 241 where he
  went to construction site to inspect steel
  columns for rust, dirt, or other materials which
  might prevent fireproofing from adhering to steel
  surface. Crowther v City of New York, 692
  N.Y.S.2d 439 (2nd Dept. 1999).

57
New York Labor Law Section 241Covered Activities
and People, Continued

• General contractor and gas company were entitled
  to dismissal of cause of action under Section 241
  to recover for injuries sustained in slip and
  fall on gravel during disembarkation from bus at
  intersection that was under construction since
  bus passenger is not member of special class of
  persons protected by statute. Neely v Buffalo,
  569 N.Y.S.2d 252 (4th Dept. 1991).

58
New York Labor Law Section 241Covered Activities
and People, Continued

• Night watchman who fell through opening in floor
  at building owned by his employer, which was
  undergoing renovations, was not entitled to
  protection under Section 241. Blandon v Advance
  Contr. Co., 695 N.Y.S.2d 36 (1st Dept. 1999).

59
New York Labor Law Section 241Covered Activities
and People, Continued

• Non-employees are typically not a person
  employed within the meaning of Section 241.
  See e.g. Tobias v DiFazio Elec., Inc., 732
  N.Y.S.2d 441(2nd Dept. 2001).
• Volunteers typically are not covered by Section
  241. See e.g. Alver v. Duarte, 439 N.Y.S.2d 501
  (3rd Dept. 1981). (Holding section 241,
  pertaining to the duty to provide a safe place of
  employment, does not furnish a cause of action to
  a man who fell from a porch roof while working on
  a volunteer basis without pay in assisting his
  daughter and son-in-law with construction of a
  house.)

60
New York Labor Law Section 241Liability of
Particular Entities Under the Statute - Owner

• Generally, Section 241 applies to owner of land
  and/or building.
• Liability under Section 241 lies against owner of
  land on which building is located,
  notwithstanding that owner may not own building
  itself. Cannino v Locust Valley Fire Dist., 661
  N.Y.S.2d 240 (2nd Dept. 1997).

61
New York Labor Law Section 241Liability of
Particular Entities Under the Statute - Homeowner

• Generally, Section 241 does not apply to owners
  of one and two family dwellings unless owner
  directs or controls the work.
• See e.g. Pesa v. Ginsberg, 589 N.Y.S.2d 330 (1st
  Dept. 1992). Owner of single-family dwelling was
  properly granted summary judgment dismissing
  action under Section 241 brought by painter who
  was injured while attempting to move furniture in
  course of performing painting contract since
  offering suggestions, lending tools, pointing out
  areas that need to be painted, and selecting
  paint to be used was insufficient to cast
  homeowner in liability.

62
New York Labor Law Section 241Liability of
Particular Entities Under the Statute General
Contractor

• Typically a general contractor and owner are
  vicariously liable under Section 241 without
  regard to their own fault.
• General contractor has a duty to comply with all
  applicable codes and regulations regarding the
  construction project.
• See e.g. Farina v Plaza Constr. Co., 655 N.Y.S.2d
  952 (1st Dept. 1997).

63
New York Labor Law Section 241Liability of
Particular Entities Under the Statute
Subcontractor

• Although Section 241 does not expressly apply to
  subcontractors, if subcontractor is delegated
  authority to supervise and control work he/she
  thus became statutory agent of contractor. See
  e.g. Leon v J M Peppe Realty Corp., 596
  N.Y.S.2d 380 (1st Dept. 1993).

64
New York Labor Law Section 241Liability of
Particular Entities Under the Statute
Governmental Entity

• Section 241 does not apply to governmental
  entities where the entity does not own the
  property in question and does not supervise or
  control the construction.
• See e.g. Kowalska v Board of Educ., 688 N.Y.S.2d
  598 (2nd Dept 1999). Court held that N.Y. Board
  of Education was not liable for plaintiffs
  injuries because the Board did not own the
  property and the construction project was under
  control of authority that was not party to
  action.

65
Contribution and Indemnification,Generally

• LABOR LAW 240 AND 241 IMPOSE A NON-DELEGABLE DUTY
  ON ALL CONTRACTORS, OWNERS AND THEIR AGENTS. DUTY
  CAN BE ASSIGNED TO ANOTHER BUT LIABILITY TO
  INJURED WORKER STILL REMAINS WITH THE CONTRACTOR,
  OWNERS AND THEIR AGENTS.

66
Contribution and Indemnification,Generally

• CONTRIBUTORY NEGLIGENCE OF PLAINTIFF IS NOT A
  DEFENSE AS STATUTE IMPOSES ABSOLUTE LIABILITY ON
  OWNER TO PROVIDE APPROPRIATE SAFETY DEVICES
  (LAFLEUR V. CONSOLIDATED EDISON, 245 A.D.2d 36
  (2d Dept. 2004)).

67
Indemnification(The abyss)

• VICARIOUS LIABILITY AND SEEKING REIMBURSMENT FROM
  THE ULTIMATE WRONGDOER
• UNDER CPLR SECTION 14, OWNER HAS LEGAL RIGHT TO
  REIMBURSMENT FOR DAMAGES TO PLAINTIFF FROM ALL
  CONTRACTORS WHO ASSUMED RESPONSIBILITY TO PERFORM
  WORK GIVING RISE TO PLAINTIFF INJURY (MAS V. TWO
  BRIDGES ASSOCIATION, 75 N.Y.2d 680 (1998)). OWNER
  MUST BE ZERO LIABLE.
• FOR COMMON LAW INDEMNIFICATION, SEE NASSAU
  ROOFING AND SHEET METAL CO V. FACILITIES DEV.
  CORP., 125 A.D.2D 754 (2d. Dept. 2002).