Scaffold Law Applies to Worker On Break
Saturday, December 3, 2005 | 0
CONSTRUCTION WORKER IS COVERED BY SCAFFOLD LAW FOR FALL FROM SIDEWALK
BRIDGE DURING HIS LUNCH BREAK
Morales v. Spring Scaffolding, Inc., NYLJ 10/17/05 (1st Dept 2005)
This appeal presented the question of whether a construction worker
injured in an on-site accident is covered by Labor Law section 240(1)
because he was on a lunch break at the time of the accident. It also
oovered the issue of whether a subcontractor who had completed its work
before the accident can face Scaffold Law liability for a sidewalk
bridge which it negligently constructed. The answer to the first question
is "yes," the second is "no."
Plaintiff, a working foreman for Galicia Contracting, a facade
restorer, was injured on August 22, 2001, when he fell approximately
eight feet from a sidewalk bridge after the parapet wall of the
bridge collapsed. The owners of the building, a multiple dwelling at
148 West 68th Street in Manhattan, defendants Premier Company, United
Enterprises, Berdar Equities Co. and Fame Equities and Management
Co., had hired Galicia to do a building facade repair that included
demolition, pointing and caulking. Galicia, in turn, had contracted
with Spring Scaffolding, Inc. to erect the sidewalk bridge over the
sidewalk where the facade repair would take place and, upon
completion of the project, to dismantle it.
Spring had completed erecting the bridge on July 19, 2001, one month
before the accident occurred. It was not hired to maintain or repair
the bridge during the course of the construction work or to supervise
and control Galicia's workers in their use of the bridge during the
repair. The bridge was approximately 50 feet in length and 8 feet in
height. The outside perimeter of the bridge had a parapet wall
composed of eight-by-four-foot plywood sheets, supported by two-by-
three-inch wooden rails. The wall was 3-3/8 inches thick and 4 feet
high.
Plaintiff and his crew of four men had been working at the site for a
few weeks. According to plaintiff, on the day of the accident, he ate
his lunch on the sidewalk bridge, sitting on an empty bucket. After
eating, the building superintendent called to plaintiff to tell him
that Galicia had a delivery. Plaintiff alleged that he walked to the
edge of the bridge, leaned his hand on the waist-high plywood wall
and bent over to see what was being delivered. As he did so, the wall
gave way and plaintiff fell to the ground approximately eight feet
below. This version of the accident is controverted by the building
superintendent, who, at his deposition, testified that he saw
plaintiff, concededly six feet tall and weighing approximately 300
pounds, sitting on the top of the sidewalk bridge's parapet wall
during the lunch break. According to this witness, plaintiff fell off
the bridge to the ground below when the parapet wall gave way.
According to plaintiff, he and his crew used the sidewalk bridge as a
staging area, and to keep tools, equipment and materials. The bridge
was also used to enter onto Galicia's scaffold, which was stored on
the bridge at lunchtime and at night, as were Galicia's tools. Bags
of sand were delivered to the bridge; sometimes, plaintiff's crew
mixed cement there.
Spring's own structural design specifications, filed with the New
York City Building Department, showed that the parapet wall was to be
constructed of one-quarter-inch plywood on two- by four-inch framing.
At his deposition, Spring's general foreman testified, however, that
Spring instead used "two- by three-inch wood along the perimeter of
the plywood." Plaintiff's expert, in an affidavit submitted in
support of his position on the various motions, was of the opinion
that since Spring's construction of the sidewalk bridge violated its
own filed design specifications, it was therefore inherently
deficient in terms of its structural strength and was incapable of
withstanding the required load, 300 pounds per square foot, according
to the design. The expert also stated that the parapet was not of the
required height.
Plaintiff commenced this action to recover for his injuries, alleging
violations of Labor Law section 200, section 240(1) and section 241(6), as well as common-
law negligence. At the close of discovery, Spring moved for summary
judgment dismissing the complaint, arguing that it was not a person
liable under Labor Law section 240(1) and section 241(6) since it was neither a
contractor nor an owner, or an agent of either, within the purview of
the Labor Law. The other defendants also moved for summary judgment
dismissal. Plaintiff cross-moved for partial summary judgment on
liability against all the defendants on his Labor Law section 240(1) cause
of action. Supreme Court denied all the motions, finding as to
plaintiff's cross motion an issue of fact as to whether
plaintiff "was on his lunch break" or had already "finished his
lunch" when the accident occurred.
Labor Law section 240(1)(the "scaffold law"), insofar as pertinent, states:
"All contractors and owners . . . in the erection, demolition,
repairing, altering, painting, cleaning or pointing of a building or
a 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 enacting this statute, the legislative intent was 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 themselves from
accident.'" "This statute is one for the protection of workmen from
injury and undoubtedly is to be construed as liberally as may be for
the accomplishment of the purpose for which it was thus framed. The
statute imposes absolute liability upon owners, contractors and their
agents where a breach of the statutory duty proximately causes an
injury."
The title owner of the building, defendant Premier, a partnership
consisting of defendants United Enterprises, Berdar Equities (which
was in charge of the repair being done on the building) and Fame,
hired Galicia and paid for the work. "Thus, for purposes of Labor Law
section 240(1), Premier, United Enterprises, Berdar Equities and Fame are
all considered 'owners' and are therefore liable for any statutory
violation. Spring, hired by Galicia to erect a sidewalk bridge prior
to the start of construction, however, is neither a contractor nor an
owner. Nor is it a statutory agent of an owner or contractor because,
not being permanently present at the construction site and lacking
the ability to control the workplace, it is not subject to the Labor
Law," held the Court.
"Although sections 240 and 241 now make nondelegable the duty of an
owner or general contractor to conform to the requirement of those
sections, the duties themselves may in fact be delegated. When the
work giving rise to these duties 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. Only upon obtaining the authority to supervise
and control does the third party fall within the class of those
having nondelegable liability as an 'agent' under sections 240 and
241."
"Since Spring left the job site upon completion of the sidewalk
bridge and was not scheduled to return until completion of the
restoration of the facade, and then only to dismantle the bridge, it
does not qualify as an agent under Labor Law section 240(1) and section 241. At the
time of the accident, Spring had no control over the use of the
sidewalk bridge or, as shown by its contract with Galicia,
responsibility for its maintenance and, indeed, it was not even
present at the job site."
"While Spring may not be held liable under Labor Law section 240(1) or section 241,
a sufficient showing has been made to raise triable issues of fact on
a common-law negligence theory and its statutory counterpart, Labor
Law section 200, based upon an improper construction and erection of the
sidewalk bridge leading to the collapse of the parapet wall. As the
record shows, there is evidence that the parapet wall was not of the
requisite height. Administrative Code of the City of NY section 27-1021 (b)
(6) (sidewalk sheds) mandated that the parapet plywood wall be at
least three feet six inches [42 inches] high. Industrial Code (12
NYCRR) section 23-1.18(b)(2) contains the same minimum 42-inch height
requirement. Spring's general foreman testified that the four-foot
parapet wall extended 10 inches below the bridge's platform, making
it 38 inches high, four inches shorter than required by Code.
Furthermore, the parapet wall also violated Spring's own design
specifications submitted to the Building Department, which showed
that the parapet wall would be constructed of one-quarter-inch
plywood on two-by-four-inch framing. At his deposition, Spring's
foreman testified that it used 'two-by-three-inch wood along the
perimeter of the plywood' at the parapet wall, instead of two-by-four-
inch wood framing."
"According to plaintiff's expert, as a result of these Code
violations and the departure from the filed design, the sidewalk
bridge was constructed negligently. Spring's 'Plan/Work Approval
Application' submitted to the Building Department called for a 'Heavy
Duty Sidewalk Shed [Bridge] 50' During Facade Repair,' intended to
have a '300 PSF [pounds per square foot] Live Load' capacity.
According to plaintiff's expert, the sidewalk bridge did not have
that capacity. Had the bridge been built according to proper
specification, he concluded, the accident would not have occurred.
Thus, Spring's motion with regard to the common-law negligence and
Labor Law section 200 claims against it was properly denied."
The Second Department's decision in Keenan v. Just Kids Learning Ctr.
(297 AD2d 708 [2002]) held that a workman's injury that occurred
during his lunch break fell outside Labor Law section 240(1). The
Departments have split on whether section 240(1) applies to a lunch break
accident. "While the issue is one of first impression in this Court,
in Kouros v. State of New York (288 AD2d 566 [2001]), the Third
Department applied the statute to a worker who was leaving the work
area to go on a lunch break. In arguing that whether he was on his
lunch break at the time of the accident is irrelevant, plaintiff
cites O'Connor v. Serge Elev. Co. (58 NY2d 655 [1982]), in which the
Court of Appeals extended coverage under an indemnity agreement to a
lunch break accident. O'Connor, however, never addressed the issue
under the Labor Law."
"In the factual context of this case, we conclude that Labor Law section 240
(1) applies to the lunch break accident. As the record shows, the
sidewalk bridge, where the lunch break was taking place, was used by
the facade repair workers as a staging area, for storing equipment
and mixing cement and as an entryway onto the scaffolding. Whether
plaintiff was still on his lunch break or had finished lunch,
eventually he would return to the scaffold, which was stored on the
bridge during the lunch break, to do more pointing work. Labor Law
section 240(1) requires that sidewalk bridges be built 'so as to provide
workers with proper protection'. Clearly, on this record, the bridge
in question failed in this regard as a matter of law."
"Even if plaintiff had been sitting on the parapet wall, that would
not constitute misuse. The sidewalk bridge was an inadequate safety
device that was improperly and negligently constructed in violation
of applicable codes and rules. At most, plaintiff's conduct would
constitute negligence, not the sole proximate cause. It is by now
well settled that a diminishment of the defendants' liability under
the doctrine of comparative negligence is inapplicable in cases
involving a violation of Labor Law section 240(1)."
Plaintiff was granted summary judgment on Scaffold Law liability
against the building owners, but only his common law negligence
action against Spring survives.
Comment: Note the difference between the First, Second and Third
Departments on the issue of whether a worker is covered by the Scaffold Law
for injuries which occur during lunch break. In the First and Third, he
is covered; in the Second, he is not. The Court of Appeals will have
to decide the issue someday.
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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