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NAB Construction seeks partial summary judgment …cont

Labor Law § 240(1) states that all “contractors and owners and their agents, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, ladders, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” The purpose of this statute is to “protect workers by placing the `ultimate responsibility’ for worksite safety on the owner and general contractor, instead of the workers themselves”.

Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker “proper protection,” absolute liability is “unavoidable” under Labor Law § 240 (1), even if the injured worker contributed to the accident. An owner or contractor who breaches that duty may be held liable in damages regardless of whether it actually exercised supervision or control over the work. Labor Law § 241(6) concerns safety conditions in “areas in which construction, excavation or demolition work is being performed.” Allegation of a violation of an Industrial Code regulation is a prerequisite to an action under this section of the statute. Absent direction or supervision of the construction work, it has been held that engineers cannot be held liable for injury under Labor Law § 241(6).

To establish a prima facie case of negligence, a plaintiff must demonstrate (1) that the defendant owed him a duty of reasonable care, (2) a breach of that duly, and (3) a resulting injury proximately caused by the breach. The threshold question in tort cases is whether the alleged tort feasor owed a duty of care to the injury party. It is the court’s responsibility to determine whether there is a duty, and “involves a very delicate balancing of such considerations as logic, common sense, science, and public policy”. There must be proof of supervision or control of the work, in order for an engineer to be held liable, and absent such supervision, there is no negligence for the failure to provide a safe place to work as a matter of law.

Here, NAB Construction, as the general contractor, has a non-delegable duty to the workers on the bridge project for injuries that arise during the course of work. NAB argues, as does Parsons, that as an inspector of the work done by NAB’s cable samplers, plaintiff was not involved in Labor Law § 240 (1)’s “erection, demolition, repairing, altering, painting, cleaning or pointing” activities, nor was his work in an area where “construction, excavation or demolition” was being performed as required by Labor Law § 241 (6). NAB relics on the holding and reasoning, which held that a worker who fell from a height in a school while performing asbestos inspection, where the inspection was phase one of a project and after its completion, phase two of the project to actually clean and remove asbestos would be performed by another supervisor, was not covered under the Labor Law statute. NAB argues that similarly, plaintiff was hired solely to inspect the discrete project of cable sampling, and that any work to repair the cables would be done by a different company, after the inspection.
Plaintiffs argue that the more analogous case and reasoning, which involved a plaintiff
The question of whether inspection work falls within the purview of Labor Law § 240 (1) and § 241 (6) is determined on a case-by-case basis and depends on the context of the work. “An employee will be deemed covered by the statute when the employee performs, for example, inspections that are on-going and contemporaneous with other work on a construction project pursuant to a single contract, other tasks that arc enumerated by the statute, and work for a contractor engaged to provide services enumerated by the statute”. “The critical inquiry in determining coverage under the statute is `what type of work the plaintiff was performing at the time of injury.'” Here, although the contract itself involved structural repairs and modifications to the bridge, plaintiff’s employer was not hired by the general contractor, NAB, but by the project consultant, Parsons, to assist in inspection, and specifically of the cable sampling work. Despite plaintiff’s arguments otherwise, his work as described in the Engineering contract, cannot be said to involve the enumerated categories of work under the statute.

Because plaintiff’s work does not fall under the parameters of the Scaffold Law or Labor Law § 241 (6), the causes of action in the complaint alleging these claims must be dismissed as against NAB, and are dismissed in the second third-party complaint against Parsons as well. Accordingly, there is no need to address the “recalcitrant worker” doctrine which, in any event, would be unpersuasive given plaintiff’s testimony that the only way to reach the platform from the cable was to unhook the lanyards.
Remaining are the Labor Law § 200 claim and the claim sounding in negligence against NAB, and NAB’s claims against Parsons seeking indemnification and contribution. Parsons moves to dismiss both causes of action, arguing that it did not exercise supervisory control over plaintiff and had no duty of care to provide him a safe work environment. The motion to dismiss both claims is denied, as there are questions of fact as to its duty of care and supervisory role. Notably, the contract with the TBTA include provisions that it would provide all protective gear for its subcontractors’ employees, ensure that the methods of performing the services do not involve “undue danger” to the employees, and comply with all safety regulations. The Parsons contract with defendant Engineering indicates that the scope of services to be performed by defendant includes performing inspection and support services in accordance with the project contract and “as directed by Consultant also retained the ability to inspect the performance of defendant’s workers and to obtain removal of any worker. Thus, the statute’s provisions may be imposed based on the contractual provision running explicitly to the workers. Additionally, plaintiff testified that he complained to an employee about the need for a ladder, at the very least calling into question whether defendant retained a direct supervisory role in the work.

Pursuant to CPLR 3025(b), “leave to amend the pleadings shall be freely given, absent prejudice or surprise resulting from the delay”. Defendant points to the existence of the clause in the contract between NAB and TBTA stating that the indemnified parties include the “consultant,” i.e., NAB opposes, and points to a conflicting clause in the same contract, entitled “No Third-Party Beneficiaries,” which states that the agreement is “solely for the benefit of the authority, the MTA and the contractor. No other person or entity is intended to receive any benefit under this agreement”.

It is basic law that the contract as a whole should not be interpreted in a way that would leave one of its provisions without force and effect. Moreover, if two clauses of a contract conflict and arc irreconcilable, it is the rule that the first clause is accepted and the subsequent one is rejected. With no discussion from the parties about the intent of the contract provision prohibiting third-party beneficiaries, the court makes no ruling as to the seemingly conflicting clauses, but grants Parsons’ motion to amend its bike complaint to add the additional defenses and counterclaims of indemnification and contribution.

The branch of the cross-motion to dismiss loss of consortium claim is denied.

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