Posted On: April 18, 2012 by Stephen Bilkis

A painter was hired to paint the walls of a building that was being renovated

A painter was hired to paint the walls of a building that was being renovated. The owner of the building, RAR, leased office spaces to BDG in the building. BDG hired a construction company to renovate the office space. The construction company hired VM to perform demolition and carpentry work: they removed partitions and constructed new partitions. The construction company also hired VPC to paint the leased space after the demolition of the old partitions. The injured painted was an employee of VPC, the painting contractor hired by the construction company.

The painter was using a roller brush to paint the wall. He dipped his roller in a paint bucket which was on the floor. He moved the bucket along the floor using his left foot, gently pushing the bucket along as he painted. When he moved the bucket with his foot, the bucket suddenly stopped as it got caught on a shot pin that was still protruding from the floor. The sudden stop of the bucket caused the painter to twist his knee. He slipped and fell to the floor and sustained injury.

The shot pin is a nail that is used to secure a partition or wall. It should have been removed after the wall partitions were removed. The painter testified on deposition that he did not know who removed the wall or who failed to remove the shot pin. He admitted that he has not seen the shot pin before he slipped and fell because of it. He did not remove the shot pin after falling because of it. He also testified that he kept on painting after the incident.
The painter brought suit for damages under Labor Law and under common law negligence. The Court has resolved to dismiss the claims under Labor Law as there is no evidence that brings the accident under the absolute liability of Labor Law.

In the painter’s claim under common law negligence, he asserted that the building owner, the office space lessee, the construction company and the demolition company all violated the provisions of the Industrial Code that working areas should be kept free from accumulations of dirt and debris and from sharp projections. The Court held that the evidence pointed to the fact that the trip and fall accident occurred in a work area.

The Court also held that although the painter tripped but did not fall, still his injury falls under trip and fall case law. The Court held that the violation of the Industrial Code claimed by the injured painted raises evidence of negligence which needs to be resolved by a jury. The issue of whether the conduct at the worksite was reasonable and adequate needs to be tried. The issue of whether or not the violation of the Industrial Code is the cause of the injury must also be determined by a jury.

Under common law negligence, the building owner, the office space lessee, the construction manager and the various subcontractors had the duty to supervise and control the work. Should they have breached their duty to supervise and control the work, they must be found guilty of negligence which may have caused the accident. The issue of whether there was a breach in the duty to supervise must also be determined by a jury.

The contractual obligation of the subcontractors to indemnify the building owner, office space lessee and the construction manager for any claim arising from negligence must also be proved during trial.

The Court held that the claim under absolute liability under Labor Law is severed from the other claims and is dismissed as against the defendants. But the liability for negligence is severed and shall continue. The issues raised are triable facts which must be tried.


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