Cable Installation and the Scaffolding Law

Sunday, August 28, 2005 | 0

INSTALLING COMPUTER CABLES FOR HOTEL'S INTERNET SERVICE MIGHT BE ACTIVITY COVERED BY SCAFFOLD LAW

Eduwu v. French Quarter V, NYLJ 6/27/05 (Supreme Court, Queens County) (WEISS, j)

On March 4, 2003, plaintiff fell off a ladder while installing cable wire at the JFK Radisson Hotel. The Hotel is owned by the defendant FRENCH QUARTER V LLC, and managed and operated by INNOVATIVE HOTEL MANAGEMENT, INC. pursuant to a contract with the owner.

On the day of the accident, the plaintiff was a maintenance engineer employed by IHM. His general duties included the repair, maintenance and service all of the equipment at the Hotel, including the heating system, boiler, TV and telephone. On the day of his accident and after completing his routine check of the hotel's equipment, he was summoned the his supervisors office where he was met by the hotel manager, Z.B. Mohammed, and his supervisor, the chief engineer, Espinal. Plaintiff testified at his deposition that he was instructed to run a computer cable from the penthouse on the 12th floor to the computer room in the basement. To accomplish the task, plaintiff had to pass the cable from floor to floor through existing conduit pipes accessed via a prefabricated hole with a cover which he flipped off with a screwdriver. The cable was passed through the hole into the metal conduit and pulled through another hole in the conduit in the ceiling of the floor below. The plaintiff claims that while he was standing on a ladder pulling the cable down from the ceiling of the business center, the ladder shifted and he fell to the floor and was rendered unconscious.

Plaintiff sued under Labor Law sections 240(1), 241(6) and 200, as well as common-law negligence. Plaintiff claimed that he was caused to fall because the ladder was defective in that it did not have rubber grips on the bottom and the ladder was not secured so as to prevent slipping or tipping.

The owner FRENCH QUARTER V LLC moved for summary judgment dismissing the complaint on the grounds that plaintiff's activity was not a covered activity within the meaning of Labor Law section section 240(1) or 241(6) and that the Industrial Codes cited in the plaintiff's bill of particulars do not set forth a specific standard of conduct to form the basis of a violation of Labor Law section 241(6); that it cannot be held liable under Labor Law section 200 or common law negligence because it did not control, direct or supervise the plaintiff's activity or have the authority to do so; and it did not create or have actual or constructive notice of any defective or dangerous condition.

The branch of defendant's motion to dismiss the plaintiff's causes of action for violation of Labor Law section 200 and common law negligence was granted. "Labor Law section 200 is a codification of the common-law duty of an owner or an employer to provide an employee with a safe place to work. It applies to owners, contractors or their agents who exercise control or supervision over the work, or who either created the allegedly dangerous condition or had actual or constructive notice of it. Where the alleged dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches." Here, "the defendant established its prima facie entitlement to summary judgment dismissing the common-law negligence and Labor Law section 200 causes of action by submitting, inter alia, the deposition testimony of the plaintiff and evidence that it did not have any actual nor constructive notice of any defective condition in the ladder, nor did it control or supervise the plaintiff's work or have the authority to do so. The plaintiff testified at his deposition that he used a ladder that was in the workshop and which he had used previously, that he set the ladder 'where [he] knew it would stand properly' and that he did not see anything wrong with the ladder before his accident. He did not observe anything wrong with the ladder before his accident. He further testified that his only supervisor was Esposito, the chief engineer, also an employee of IHM."

The Motion to dismiss the Labor Law section 241(6) cause of action was also granted. Labor Law section 241(6) requires that all areas where construction, demolition of a building and excavation is being performed shall be arranged and operated so as to provide reasonable and adequate protection and safety to persons employed in or frequenting such areas. "The defendant has established through, inter alia, the deposition testimony of the plaintiff that there was no construction, demolition or excavation taking place at the Hotel at the time of the plaintiff's accident. Here, the plaintiff's accident did not occur in the context of construction, demolition or excavation and, thus, Labor Law section 241 (6) does not apply to this case.

But the Motion to dismiss the Labor Law section 240(1) claim was denied. Labor Law section 240(1) requires that in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure, owners, general contractors and their agents provide proper protective equipment or devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. Thus, for an owner or general contractor to be held absolutely liable under this statute, at the time of the accident, a plaintiff must be engaged in construction or one of the other activities covered by section 240(1).

The Hotel asserted that the plaintiff was engaged in routine maintenance by replacing a non-functioning computer wire. "The contract reflects that Guest-Tek was to provide software and a server to upgrade the existing computer system so that it would provide high speed internet access. The contract provided that Guest-Tek would test the existing network at the Hotel, determine whether it could support the system to be installed, and if not, then it would identify the problem and make suggestions as to possible resolutions. The Hotel was to resolve the problems at its own cost. If the existing network system was approved by Guest-Tek, then they were responsible for installing necessary networking equipment, server computer and the various software."

The deposition testimony of the Hotel's president and its general manager was not "clear regarding when the work was done; on what dates Guest-Tek was at the Hotel; whether the existing network was approved or whether modifications or additions had to be made. Accordingly, the defendant has failed to establish its entitlement to summary judgment by demonstrating that Labor Law section 240(1) is inapplicable because the plaintiff was involved in 'routine maintenance' work as opposed to being involved in the installation of a new system..."

Accordingly, the Scaffold Law claim was not dismissed.

by NY attorney Lawrence Rogak.

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