An ironworker foreman from a subcontractor construction firm in New York sued a general project contractor. The project would erect a high-rise tower atop the then-existing structure. The general contractor retained the defendant as the concrete subcontractor, whose duties included installing rebar, provide carpentry services and provide a tower to install the curtain wall.
On the day of his accident, the plaintiff was leaving the third floor to go to the second floor, where the Tower shanty was. In order to go from the third floor to the second, plaintiff had to descend a flight of steps, identified as north stairway or the stairs. The north area of the third floor was exposed to the elements, as it was to become part of the main lobby which would eventually rise 75-80 feet above, with an extended facade and a horizontal skylight.
Immediately before the stairs was an area of exposed rebar that had been laid preparatory to a concrete pour. The rebar consisted of a grid of five-inch by five-inch squares, and a picture taken soon after the accident, on the same day, shows that snow had fallen on the area at some point prior to plaintiff’s accident. According to plaintiffs’ amended complaint, the plaintiff was caused to trip and fall over rebar, dirt, snow, ice and other litter and he fell down approximately 10 cement steps to the landing below, sustaining injuries. The evidence raises multiple questions of fact that must await the trier of fact for resolution. The witness testified that it had snowed one or two days before the accident, yet the daily construction logs show that it snowed five days before that the rebar was installed either that morning or the day before the accident.
The Defendants seek summary judgment on the Labor Law and negligence claims based on the argument that they did not direct or control plaintiff’s work. However, the defendants make no argument that they had no actual or constructive notice of the alleged hazardous condition. In opposition to defendants’ motion, plaintiffs do not address defendants’ argument regarding direction or control, but explain that their claims are based on defendants’ actual or constructive knowledge of the condition, within sufficient time to remedy it, and their failure to do so. It is not until defendants’ affirmation in reply that defendants argue, in a paragraph, that the rebar was not installed more than a day or so prior to the accident and that plaintiff was unsure as to whether or not ice and/or snow had accumulated on the rebar thereby creating a hazardous condition.
It is settled that Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. When an injury occurs as a result of a dangerous condition, rather than as the result of a contractor’s method of doing the work, the statute applies to owners and contractors who either created a dangerous condition or had actual or constructive notice of it. In order to establish a defendant’s notice, a dangerous condition must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.
The Plaintiffs’ amended complaint asserts one cause of action, sounding in common-law negligence and violations of Labor Law. The Labor Law claim has been withdrawn.
In plaintiffs’ prior bills of particulars, plaintiffs alleged that he slipped and tripped on rebar, dirt and other matter and these prior bills of particulars further alleged that the defendants failed to ensure the job site was free of tripping hazards, they failed to ensure the job site was free of loose debris and materials that cause tripping and slipping hazards and they failed to ensure that sufficient laborers were at the job site to clean up the dirt, debris and other refuse. Later on the plaintiff seek to amend their bill of particulars and include that the defendants failed to remove snow and ice from the landing and stairway and failed to cover said landing and stairway from falling snow and freezing ice.
The Plaintiff attests that he slipped off/in the rebar and his co-worker, testified that the top of the rebar was slippery. The Plaintiff also specifically averred that he did not think that there was sand or salt for traction against the snow hazard, and it is uncontested that the exposed rebar was not covered. Thus, the Defendants have failed to establish that they did not violate this provision of the Industrial Code. However, the court concludes that it is inapplicable because the plaintiff was not injured in a passageway. The language of the case law on the issue of what constitutes a passageway appears to focus on the spatial characteristics and/or the use put to the areas in issue, rather than the make-up or composition of the areas in question path between shed and room where plaintiff was working was not a passageway and the pipe that plaintiff tripped over was integral part of construction and plaintiff was working in large, open area, not passageway.
Sources revealed that the Plaintiffs seek to amend their bill of particulars to conform it to their amended complaint. Plaintiffs claim that the defendants would be neither surprised nor prejudiced by the amendment because the defendants all had full access to all the discovery had in this matter, including the date-stamped photo taken of the accident site shortly after plaintiff fell which was shown to all those who were deposed. In addition, in his affidavit, the plaintiff attests that his foot slipped off the top of the rebar and it went into one of the pockets or squares of the rebar causing the fall forward. His co-worker testified in his affidavit. The Plaintiffs maintain that the proposed amendments will not change their theory of liability.
The Defendants contend that plaintiff’s affidavit contradicts his much earlier deposition, maintaining that at his deposition, plaintiff had said that he was not sure if ice and snow had accumulated on the exposed rebar, and that he could not say with certainty what had caused his fall. According to defendants, plaintiff never said in his deposition that his accident was due to rebar that was slippery from snow and ice.
However, the defendants’ contention makes too fine a distinction between plaintiff’s testimony in his deposition and in his affidavit. There is no discrepancy. On his deposition, the plaintiff attested that he slipped off/in the rebar; that it was cold, and that there might have been ice on the rebar, but he was not sure; that it was a pretty messy area at the time with snow and debris and stuff. The issue of the presence of ice and snow was raised again when he testified that he did not think that there was sand or salt for traction against the snow hazard. The Plaintiff did not know exactly if snow or ice was on the rebar, but it was definitely in the general area. The Plaintiff’s affidavit is not to the contrary. Rather, he attests that snow and ice covered the entrance area to the stairs and that the stamped photo showed the conditions there at the time of the accident.
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