Floor Collapse Equals A Scaffold Law Claim

Saturday, July 29, 2006 | 0

Jones v Powell Plaza Hous. Dev. Fund Co., Inc. et al., 2006 NY Slip Op 51369(U) (Decided on July 7, 2006) (Supreme Court, Kings County) (Harkavy, J.) (index no. 28367/02)

On October 2, 2001, plaintiff Earl Jones allegedly sustained injuries while working at a building located at 2326 Seventh Avenue in New York City. At the time of the incident, the building was owned by defendant Powell. On or about October 11, 2000, Powell entered into an agreement with defendant Cheever for the latter to serve as the general contractor for a project involving the rehabilitation of several existing buildings located at 2322-2328 Seventh Avenue in New York City. The project involved converting the buildings into 36 residential units and 4 commercial units. Cheever retained defendant AZ Neptune to perform demolition work on the project, which consisted of, among other things, removing the arches which supported the first floor. Cheever also retained Staten Island Contracting (not a party to this action) to monitor the progress of the ongoing construction/rehabilitation work at the building and oversee the loading and unloading of construction materials needed for the project. At the time of the accident, plaintiff was employed by Staten Island Contracting as a laborer supervisor.

During his deposition, plaintiff testified that he was responsible for making sure that materials such as wooden beams, sand, fencing and other construction materials were delivered to the site, and that the work was being performed as planned. Just before the accident occurred, the plaintiff had entered the building and was walking across the first floor headed toward the backyard to check on the status of something. Immediately upon walking through the first floor level, the concrete floor collapsed, causing the plaintiff to fall to the basement thereby sustaining various injuries. Plaintiff claims that he was wearing a hard hat at the time of the accident, but that he was not provided with any other safety devices which could have prevented him from falling.

During his deposition, plaintiff's supervisor testified that, on the day of the accident, he had instructed the plaintiff to make sure that the first floor arches (the concrete material that was placed between two metal I-beam studs which supported the first floor) were demolished, and that the plaintiff was to call him in the event a problem arose. He further testified that AZ Neptune was the contractor responsible for performing this aspect of the demolition work. Earlier in the morning on the day of the accident, AZ Neptune had, in fact, performed demolition work on the first floor of the building which involved removing the arches

In his bill of particulars, plaintiff alleged common-law negligence and violations of, inter alia, Labor Law Sub Section 200 240(1) and 241(6).

Plaintiff moved for partial summary judgment on the issue of liability under his Labor Law Section 240(1) cause of action against Powell, Cheever and AZ Neptune.

Labor Law Section 240(1) affords protection to construction site workers who are exposed to elevation-related hazards Specifically, Section 240(1) provides, in pertinent part, that:

"All contractors and owners and their agents in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

In order to impose liability under the statute, a plaintiff must demonstrate that the statute was violated and that the violation was a contributing cause of his or her injuries. Moreover, "the duty imposed by Labor Law Section 240(1) is nondelegable and an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work." Finally, the statute is to be construed as liberally as possible in order to accomplish its protective goals.

However, given the absolute liability imposed under Labor Law Section 240(1), only those workers engaged in the activities specifically enumerated in the statutory language are protected under the statute.

"In support of his motion," said the Court, "plaintiff contends that the undisputed facts show that, while the subject building was undergoing construction and demolition work, the first floor collapsed underneath him causing him to fall approximately 10 feet into the basement. Plaintiff further contends that the defendants failed to take the necessary precautions to prevent him from falling through the first floor which was undergoing demolition, and that this failure was the proximate cause of his injuries."

"In opposition, Cheever, Powell and AZ Neptune (collectively defendants) argue that the happening of the accident does not fall within the ambit of Labor Law Section 240(1). In this regard, defendants contend that, at the time of the accident, the plaintiff was not involved in any of the demolition or construction work but was merely in the process of walking across the floor in order to check on something in the back of the building. Defendants further contend that Labor Law Section 240(1) is not applicable since the floor through which the plaintiff fell was a permanent rather than a temporary structure."

"Having considered the parties' arguments and the relevant case law, the court holds that Labor Law Section 240 (1) is applicable... In the present case, plaintiff's employer, Staten Island Contracting, was hired by Cheever as a laborer supervisor to, among other things, monitor the progress of the construction/rehabilitation work ongoing at the building and oversee the loading and unloading of construction materials needed for the project. In this court's view... the plaintiff was employed in the rehabilitation/demolition of the building at the time of his accident, and the work he was performing was part of that project. Because plaintiff's presence at the construction site exposed him to elevation-related risks, Labor Law Section 240 (1) applies to his work. Thus, contrary to the defendants' contention, defendants may be liable for the plaintiff's injuries, despite the fact that the particular job being performed at the moment plaintiff was injured did not in and of itself constitute construction."

"Additionally, the court rejects defendants' argument that Labor Law Section 240(1) is not implicated because the plaintiff was injured as the result of the collapse of a permanent, rather than a temporary structure. Labor Law Section 240(1) applies to the falling worker who is working at a gravity-related risk, and such risks have been held to occur at or near ground level. Moreover, a collapsed floor has been held to constitute prima facie evidence of a violation of Labor Law Section 240(1)."

"Here, the record conclusively establishes that AZ Neptune was responsible for demolishing the arches which supported the first floor of the building, and that it had performed such work earlier in the day that the plaintiff's accident occurred. The fact that the first floor underneath the plaintiff collapsed established a prima facie case of liability under Labor Law Section 240 (1), since a collapse would not have occurred if safety devices had been properly constructed so as to give adequate protection. Since the defendants have failed to raise any triable issue of fact regarding same, the plaintiff is entitled to partial summary judgment on the issue of liability under his Labor Law Section 240 (1) claim."

Cheever also sought summary judgment on its fourth-party claim against AZ Neptune for common-law indemnity. To establish a claim for common-law indemnification, held the Court, "the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident or in the absence of any negligence that the proposed indemnitor "had the authority to direct, supervise, and control the work giving rise to the injury."

"Here, there is no evidence that Cheever's liability under Labor Law Section 240(1) is other than vicarious. Moreover, it is undisputed that AZ Neptune was the entity responsible for performing the demolition work on the first floor of the building where plaintiff's accident took place. Thus, the uncontroverted evidence of AZ Neptune's exclusive supervision and control of the work giving rise to plaintiff's injury entitles Cheever to summary judgment with respect to its fourth-party claim for common-law indemnification against AZ Neptune."

Powell also sought summary judgment against Cheever for common-law and/or contractual indemnity and breach of contract for failure to obtain liability insurance. "Powell argues that it is entitled to summary judgment on its contractual indemnification claim against Cheever because Cheever was responsible for safety at the work site, and was ultimately responsible for hiring AZ Neptune to perform the demolition work which allegedly caused the plaintiff's injuries. Further, Powell maintains that the undisputed facts show that it did not actively direct, supervise, or control the plaintiff's work at the site."

"A party is entitled to full contractual indemnification [for damages incurred in a personal injury suit] provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances. As long as an owner or general contractor is not negligent, General Obligations Law Section 5-322.1 does not bar a party from receiving contractual indemnification. This is true even if the contract language purports to provide indemnification for an owner or general contractor's own negligence."

"Here, the agreement entered into between Cheever, as contractor, and Powell, as owner, contained the following indemnification provision:"

"To the fullest extent permitted by law, [Cheever] shall indemnify and hold harmless [Powell] from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, but only to the extent caused in whole or in part by negligent acts or omissions of [Cheever], a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder."

"As a result, Cheever's contractual duty to indemnify Powell can only be triggered by an actual finding of negligence against it (Cheever) or one of its subcontractors, namely AZ Neptune. Here, it is undisputed that Cheever's subcontractor, AZ Neptune, exercised exclusive supervision and control over the demolition work giving rise to plaintiff's injury. As such, it is clear that plaintiff's accident falls within the scope of the above-referenced indemnification clause. Accordingly, Powell is entitled to summary judgment on its third-party cause of action for contractual indemnity."

"To the extent that Powell seeks summary judgment on its common-law indemnity claim against Cheever, that aspect of the motion is denied since Powell has failed to make a prima facie showing that Cheever either controlled the plaintiff's activities or was negligent in any manner."

"Powell contends that, pursuant to the terms of the Powell/Cheever contract, Cheever was required to procure comprehensive general liability insurance naming Powell as an additional insured, and that it failed to do so. Although Cheever provided Powell with a certificate of insurance, which indicated that Powell was named on a primary insurance policy issued by Underwriters at London, Powell contends that, to date, Underwriters at London has refused to provide defense and indemnification for the plaintiff's accident claiming that Powell was never actually written under that policy. As a result, Powell contends that it is entitled to summary judgment on the issue of whether Cheever is liable to it for any damages associated with its failure to acquire such insurance."

"In opposition, Cheever maintains that it did take steps to obtain the necessary insurance and to have Powell named as an additional insured on its general liability insurance policy with Underwriters at Lloyds. In this regard, Cheever contends that it made a request to its insurance broker, Nancy Hardy, that Powell be named as an additional insured, and that Ms. Hardy, in turn, made a request to Cheever's insurance company's agent. Cheever contends that, if there was a failure to write a policy naming Powell as an additional insured, Underwriters at Lloyds and/or its agents are liable and, therefore, Powell is limited to seeking relief from them rather than it."

"A promisee seeking summary judgment based upon a promisor's failure to name the promisee as an additional insured, as required by the contract between the two, need only show that the contract so required and that the promisor failed to comply with this provision. Here, the agreement between these parties clearly required that Cheever procure insurance naming Powell as an additional insured. Despite Cheever's alleged efforts to have Powell added as an additional insured on its general liability insurance policy with Underwriters at Lloyds, in opposition to Powell's application, Cheever has failed to establish that it in fact procured the requisite insurance on behalf of Powell. It is irrelevant that Cheever's insurance broker issued a certificate of insurance which indicated that Powell was an insured entity under the Underwriters' at Lloyds' policy since the certificate was issued 'as a matter of information only' and thus could not serve to alter the actual coverage as set forth in the policy. Indeed, the certificate, standing alone, is insufficient evidence that the requisite insurance was in fact procured."

"Moreover, the court notes that the certificate of insurance provided indicates that the subject policy period was from 07/01/01 to 10/01/01, which expired the day before plaintiff's accident occurred. Based upon the foregoing, the court finds that Powell has made a prima facie showing that Cheever failed to procure the requisite liability insurance, and that Cheever has failed to raise an issue of fact establishing otherwise. Accordingly, that branch of Powell's motion seeking summary judgment on its breach of contract claim for failure to procure insurance is granted."

Article by Larry Rogak. Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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