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Plaintiff has Slip and Fall Accident at Work

A general contractor was hired by a tenant of a building in Manhattan. The project was to install duct work into the intake air duct down in a shaft below street level in front of the building. A New York Injury Lawyer said the general contractor hired an air conditioning contractor to install the duct work at the job site. The air conditioning contractor subcontracted out its work to the metal sheet contractor.

The complainant was employed by the metal sheet contractor as a journeyman sheet metal worker, whose responsibilities were to hang and install duct work through the supervision of the complainant’s foreman. On November 9, 2004, the complainant and his foreman went to the building in order to install a large piece of prefabricated duct work, known as gooseneck duct, below street level. According to the complainant, the gooseneck duct was the size of a car and was approximately six feet long, six feet wide, and five feet tall, and weighed between 110 and 125 pounds. The site where the gooseneck duct was to be placed was located below a series of about 40 metal grates that were in place on the ground. Each grate measure approximately two feet by four feet, and this grating covered an area of the ground measuring approximately 12 feet by 8 feet. The vault below the grating was approximately 15 feet deep.

In order to install the gooseneck duct below ground, the grating on the street level needed to be opened. The gooseneck duct was to be lowered through an opening in the grates in order to be installed below them.

Upon the complainant’s arrival together with his foreman at the job site, they met with a representative from the general contractor, The general contractor representative who showed them where the gooseneck duct was going to be installed in the area below the grates and told them to wait for the representatives of the buildings to see how they would go about installing it. A mechanic and an engineer, who were employees of the building met with the complainant and the foreman. The two building employees then told the complainant and his foreman that the gooseneck duct was going to be lowered though the grating, and asked the foreman which grate was to be opened. The foreman told the building employees which grate to open and the complainant and his foreman went back to their truck to unload the gooseneck duct. As the complainant and his foreman were unloading the gooseneck duct off the truck, the mechanic removed the grate by unbolting four clips that held the grate down, lifting the grate up, and leaning it back against the building. However, the mechanic did not open the grate that the foreman had requested him to open. Instead, the mechanic opened the grate in the far corner, creating an unprotected two feet by four feet holes.

In order to maneuver the gooseneck duct to the grating area, the complainant and his foreman had to take the gooseneck duct around a rectangular billboard sign, which was attached to posts that were bolted to the ground over the grates. They transported the gooseneck duct to the area of the billboard on a dolly, and, when they arrived at the billboard area, they removed the gooseneck duct from the dolly, and attempted to drag the gooseneck duct behind the billboard on the left side in the space between the billboard and the building. While the gooseneck duct was on the sidewalk over the grates and the complainant was attempting to pull it into position, he let go of the gooseneck duct and fell backwards down approximately 15 feet into the hole created by the open grate.

Consequently, the complainant filed the action against the property manager and the general contractor, seeking to recover damages for the personal injuries sustained by him due to his slip and fall. The complaint alleges claims of common-law negligence, and violations of Labor Laws. The general contractor and the property manager both interposed their answers and the property manager asserted cross claims against the general contractor. The general contractor filed a third-party action against the metal sheet contractor. The metal sheet contractor answered the third-party complaint and the general contractor filed a second third party complaint against the air conditioning contractor. The air conditioning contractor interposed its answer and served cross claims against the metal sheet contractor. The general contractor sought to voluntarily discontinue its second third-party action against the air conditioning contractor, but none of the parties, other than the general contractor and the air conditioning contractor agreed to sign and execute the stipulation of discontinuance. The complainant filed his note of issue upon the completion of discovery.

The complainant argues that he is entitled to summary judgment in his favor on his Labor Law claim. The Labor Law imposes liability upon owners and contractors and their agents who fail to provide or erect safety devices necessary to give reasonable and adequate protection and safety for workers engaged in construction work who are exposed to elevation-related hazards. The legislative purpose behind the 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, instead of on workers, who are scarcely in a position to protect them from an accident. A Long Island Personal Injury Lawyer said it is well settled that Labor Law is to be construed as liberally as may be for the accomplishment of the purpose for which it was framed.

In opposition to the complainant’s motion for summary judgment and in support of its motion insofar as it seeks summary judgment dismissing the complainant’s Labor Law claim, the property manager contends that the Labor Law is inapplicable to it because it was not the owner of the premises, a general contractor, or the agent of the owner or general contractor. However, a Brooklyn Personal Injury Lawyer said while the property manager was not the owner of the premises or a general contractor, a party can be deemed a statutory agent under the Labor Law and may be held vicariously liable as an agent of the property owner for injuries sustained pursuant to Labor Law where it had the ability to control the activity which brought about the injury.
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When the work giving rise to the duty to conform to the requirements of Labor Law has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory agent of the owner or general contractor. Indeed, it has been held that a property manager can be held liable under Labor Law as an agent of the owner.

The property manager argues that although it served as the property manager for the premises, it had no contractual relationship to the construction work which the complainant was performing. The property manager relies upon the fact that the general contractor’s contract for the project was with the tenant. However, it is unnecessary for the property manager to have it actually contracted for the work in order for it to be held liable under Labor Law.

The property manager also relies upon their mechanic’s deposition testimony that his supervisor, had told him to go up to the street level and open a piece of the grating for the tenant. Such deposition testimony, however, only supports the argument that the property manager was acting as an agent for the owner when its employee, the mechanic opened the grate for the complainant to install the gooseneck duct.

While the property manager argues that it did not supervise or control the complainant’s work, their employees, the mechanic and the engineer, were present at the work site. The property manager contends that the removal of the grate by their mechanic did not constitute supervision or control over the complainant’s work since it was the foreman who directed their mechanic to remove a particular grating. The foreman’s direction as to which grate to open, however, did not negate any independent duties which the property manager may have had under the Labor Law, or prevent them from assuming those duties and thereby becoming vicariously liable as an agent of the property owner.

With respect to the supervision and control of the property manager over the complainant’s work, the foreman testified, at his deposition, that a representative from the general contractor told them that they had to wait for somebody from the building to come and see how they were going to get the gooseneck duct into the building. The foreman further testified, at his deposition, that the people from the building then told them that they should bring the gooseneck duct down through the grating. Although according to the foreman, he told the people from the building which grate he wanted removed, the mechanic decided to open a different grate because he thought it would be the safest one, and neither the complainant nor the foreman was informed of it.

By opening the grating and thereby creating an open unprotected hole, the property manager, through its employees, exercised sufficient supervision and control over the complainant’s work so as to render it liable under Labor Law as an agent of the owner. While vigorously disputing the liability of the property manager, which is acknowledged to be an incorrect accused and not the owner of the premises, the company has acknowledged that it served as the property manager for the subject premises. Thus, as the agent for the owner, they would be liable to the complainant under the Labor Law. Thus, the property manager’s cross motion, insofar as it seeks dismissal of the complainant’s Labor Law claim, must be denied.

In opposition to the complainant’s motion for summary judgment in his favor, the property manager argues that the complainant is not entitled to summary judgment because there is a question of fact as to whether the complainant acts were the sole proximate cause of his injuries. Specifically, the property manager contends that the complainant was aware of the necessity for a grate to be removed so that the job could be carried out, but did not pay attention to the work of the employees. The property manager asserts that the complainant’s failure to pay attention is a sufficient ground to deny his motion for summary judgment.

The property manager’s argument is rejected. Where a violation of Labor Law is a proximate cause of an accident, the worker’s conduct cannot be deemed solely to blame for it. The law states that contributory negligence will not exonerate an accused who has violated the statute and proximately caused a complainant’s injury.

The general contractor and the metal sheet contractor, in opposition to the complainant’s motion, argue that Labor Law is inapplicable to the case because the complainant was not involved in any work related to an elevation differential, but was, instead, merely moving the gooseneck duct from one location on the ground to another and not attempting to lower it. The argument is rejected. Although the complainant was at ground level, the hole into which he fell was 15 feet deep, and, thus, there was an elevation differential. The purpose of the complainant’s actions, moreover, was to move the duct from ground level to the lower level through an opening in the grate pursuant to instruction. Traversing the ground where there was a 15 foot deep hole constituted an elevation-related risk covered by Labor Law.

The general contractor further argues that an opening created by the removal of a grate is akin to an opening created by the removal of a manhole cover. The Appellate Division in so holding, specifically noted that while Labor Law is applicable to work performed at heights or where the work itself involves risks related to differentials in elevation, the work in which the injured the complainant was involved in that case was wholly unrelated to an elevation-related hazard, the manhole in which he fell. Thus, the complainant’s injury was not a direct consequence of the performance of his work.

Doing our job sometimes exposes us to danger. If you are harmed or injured while at work, you can seek the services of Brooklyn Slip and Fall Attorneys together with Brooklyn Accident Lawyers. If you are unable to work and earn a living due to injuries at work, you may consult a Brooklyn Workers Compensation Lawyer from Stephen Bilkis and Associates.

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