Posted On: April 7, 2012 by Stephen Bilkis

An employee in a construction site summoned the property owner

An employee in a construction site summoned the property owner, the general contractor, the subcontractor and his employer. The parties were engaged in the construction/renovation of a condominium. A subcontractor was hired to provide the pre-fabricated exterior panels for the building. They subcontracted the installation of the exterior panels to an erector company. The Plaintiff was an employee of the erector company at the time of his accident.

Sources revealed that the purpose of the construction/renovation was to transform an existing eight-story building into a higher one, suitable for condominiums. The additional floors were set back from the original eight, creating a ledge on the ninth floor (formerly the roof). It was on the ninth floor that plaintiff suffered his accident.

It is uncontested that on the day of the accident, the ninth floor of the site was littered with construction debris, and had been so cluttered for some time. In fact, the erector's owner wrote to the subcontractor’s project manager, complaining of the unsafe and deplorable conditions at the job site, including materials and debris everywhere left from other contractors. The day before, the erector’s owner had also written to the project manager complaining that on the 9th floor roof, there are many safety hazards and material and debris everywhere. At his deposition, the erector owner testified that between December 2002, when the letters were written, and February 26, 2003, the date of the accident, the debris problem on the ninth floor got worse because the interior of the building was getting finished, so all the stuff that was laying in there, they kept pushing out into the areas so they could finish the interior of these apartments. Everybody was putting a lot of the debris there because they were trying to finish the apartments. In short, the trades working on the interior portions of the ninth floor were using the terrace essentially as a dump for debris.

At the time of his accident, the plaintiff was engaged in affixing the sub-contractor’s pre-fabricated panels to the facade of the building. This he did in concert with a crane that lifted the panels from the ground level to the ninth floor. Plaintiff attested that there was so much trash and debris on the floor that it was necessary for him to make a path to get to the area where he was going to perform his work. The workers made a path by walking back and forth. They couldn't use the shovel because there is trash everywhere; broken up concrete on a slab and chicken wire. At some point, while plaintiff was traversing the floor to get to a panel, he tripped and fell on his face. When asked if he knew what caused him to trip, he asserted that it was a piece of wire. It felt like somebody caught his feet and he just went right over he was caused to trip over a piece of wire debris that had been left on the job site. The wire caused him to trip and fall and injured his face. Although the plaintiff testified that he had not seen the wire before or after he fell, he attested that he knew it was a piece of wire that caused his fall because something caught his feet. Something grabbed his foot and made him fall. The plaintiff knew he fell because of a wire because it felt like something wrapped his foot. In addition, plaintiff identified a photograph, which the plaintiff claimed depicted the wire that allegedly caused his fall, surrounded by his blood.

However, not long after he testified that he fell because of a wire, the plaintiff was asked if it is true that he doesn't really know what caused him to trip? He responded that he really doesn't know what caused him to trip — he said that he felt like something, somebody tied his shoe that made him fall.

The employer urges that the plaintiff's negligence claims must be dismissed against defendants because the plaintiff cannot establish the cause of his fall, and therefore, also cannot establish that defendants' negligence or violation of Labor Law caused or contributed to his injury. In addition, because of a certain lack of clarity in plaintiff's testimony, the erectors concludes that plaintiff cannot offer evidence of immediate cause and that he cannot point to the particular debris that caused his fall.

Although there is some uncertainty in the plaintiff's testimony, he was quite clear that the ninth floor was so strewn with debris that he and his co-workers had to make a path through it just to get to the panels they needed, and that some debris caught his feet and caused him to fall. He also attested that a photograph showed what he believed was the wire that caused his fall, surrounded by his blood.

The employer has not established that the defendant's negligence and/or violation of Labor Law that did not cause the plaintiff's injuries. The employer has produced no evidence demonstrating that defendants did not cause or create the unsafe and deplorable conditions of material and debris everywhere on the ninth floor or that they had no actual or constructive notice of the condition. Thus, the employer has not met its burden of establishing its legitimate complaint entitlement to request dismissing the claims.

On the other hand, the plaintiff has submitted evidence that indicates that the debris-strewn condition was longstanding, and the photograph he has identified as showing the scene of the accident, with a wire surrounded by his blood, suggests that a piece of wire debris caused his accident and injuries. This evidence is sufficient to raise issues capable of trial which prohibit summary judgment.

Therefore, the part of employer’s cross motion which seeks request in dismissing the plaintiff's Labor Law and common-law negligence claims is denied.

Labor Law imposes a non-delegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers. To recover on a cause of action alleging a violation of Labor Law, a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards. The rule or regulation alleged to have been breached must be a specific, positive command and be applicable to the facts of the case. The duty is imposed regardless of the absence of control, supervision, or direction of the work because the `apparent intent of the 1969 amendment was to compel owners and general contractors to become more concerned with the safety practices of subcontractors because they would be exposed to liability without regard to control over the work citation. However, as is well-settled, an owner or general contractor may raise any valid defense to the imposition of vicarious liability including contributory and comparative negligence.

In his complaint, plaintiff alleges that Industrial Code serve as the bases for his section but in his papers opposing erectors' crossed motion.

However, erectors has made no argument and has submitted no evidence in support of this portion of its cross motion. Thus, it has failed to demonstrate its entitlement to summary judgment dismissing plaintiff's Labor Law claim. This part of the cross motion is denied.
The principles of common-law indemnification allow the party held indirectly liable to shift the entire burden of the loss to the actual wrongdoer. Common-law indemnification is obtained from the actively negligent party. To establish a claim for common-law indemnification, the one seeking protection must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed co-defendant was guilty of some negligence that contributed to the causation of the accident.

The court has determined that no negligence on the part of the erectors caused the plaintiff's injuries. Therefore, the request to dismiss the sub-contractor and the employer’s cross claims for common-law indemnification is granted.

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