A journeyman from a construction company had an accident that occurred at premises under construction located in New York and described as the Air Rights Garage project. The plaintiff named four groups of defendants. The accident premises were owned and being developed by Defendant A and the general contractors.
On or about April 9, 2002, Defendant B entered into an agreement with third-party plaintiff to which it agreed to provide certain work, labor, materials and services in connection with the project. Thereafter, on or about November 4, 2002, Defendant B entered into a subcontract with the plaintiff’s employer.
On the date of the accident, plaintiff was employed as a journeyman by Co-Defendant B. The employer, Co-defendant B was hired by Defendant B to erect the columns and walls of a parking garage. The Plaintiff’s job duties included helping erect the stone columns; putting said stone on a wall utilizing a crane; attaching bolts and clips to secure the above, and then finally welding the clips. The Plaintiff has a foreman and an immediate supervisor. On the date of the accident, the plaintiff was welding just below the roof level. While he was in the process of welding a clip into place he stopped welding and proceeded to go two floors below in order to make adjustments on a large generator which controlled the welding. In order to do this, plaintiff had to walk down a wooden stair case. While descending the wooden stairway leading from the top floor to the floor below, plaintiff’s right trouser leg pants was caught on a protruding nail on the right stairway post. This prevented his right foot from reaching the first tread causing plaintiff to fall head over heels down the stairway and its immediate landing to the bottom of the stairs. He noticed the nail, after the accident and pointed it out to his immediate supervisor, who went up and hammered the said nail in.
Defendant B argues that plaintiffs’ Labor Law claim fails because plaintiffs have pled violations of the Industrial Code, that are clearly inapplicable to the facts of the case, or that if applicable were not violated, or because of plaintiffs’ lack of proof of such violation. In Tact many of the specific violations of regulations that are claimed are belied by plaintiffs own deposition testimony and testimony of the immediate supervisor, a witness who was present at the time of the alleged accident.
The testimony of a carpenter from Defendant C contains an admission that he built two staircases at the job site. He also testified that to his knowledge, Defendant D did not build any staircases at the job site in question.
As a matter of law, there is no proof that any subcontractor acted unreasonably. No one knows who put the offending nail in the post or when. No one had actual knowledge of this alleged defect. There has been no evidence to establish constructive notice. As a matter of law, “unreasonableness” cannot he proved on such evidence.
As Defendant B notes in reply, the plaintiff concedes that only two rules of the Industrial Code arc at issue in this lawsuit. And, by failing to address Defendant B’s argument against all other rule violations, they are entitled to summary judgment dismissing all claimed Industrial Code violations and OSHA violations.
Corroboration of said accident is established in the deposition of the plaintiff’s immediate supervisor. The supervisor was employed as general foreman at the job site His deposition testimony confirms the fact that plaintiff’s accident occurred on the wooden staircase of the west end of the air rights garage. He heard plaintiff cry out as he slipped and fell down the staircase and he testified that he saw his pant get hung up on a nail that was sticking out of the side of a handrail. He saw the nail that was at the vertical post of the top step. The nail was sticking out a quarter, three eighths of an inch. It was a double headed nail sticking out in the direction where a pedestrian would descend the stairs.
Defendant B argues that an actual item of building material that is actually used in construction is not to he considered debris. Nor is that piece of building material, such as a nail, once it becomes part of a structure to be considered an obstruction or tripping hazard for the purposes envisioned by the framers. With respect to tripping hazards, the plaintiff testified that although the concrete floor of the top level of the parking structure contained some repository of debris and/or supplies strewn on its floor, the immediate area surrounding the stairway that is the subject of this case was free of building materials, supplies and debris. Further, there is no testimony that the platform at the top of the stairway or the stairs themselves contained any loose building materials or debris or other items which had anything to do with this accident. A nail that was an integral part of the structure of the stairway cannot he considered debris and cannot be considered either debris or a tripping hazard within the ambit.
Defendant B argues that as to the sharp projection aspect, there is no testimony that the alleged projecting nail that initiated plaintiff’s fall was sharp. The Plaintiff does not know if the blunt head of the nail was exposed or the pointy end of the nail was exposed.
The law requires that sharp projections in a passageway be covered or removed. Similarly it requires that work areas be free of sharp projections insofar as is consistent with the work being performed. These sections refer to sharp projections as those that could cut or puncture a person. In this case, plaintiff has no proof whatsoever, even assuming the nail was protruding as he testified that such protrusion was the proximate cause of his trip and fall.
The Plaintiff counters arguing that it is uncontested that there was a protruding nail on the staircase which constitutes a tripping hazard as well as obstruction and condition which caused the accident.
Further, the defendant’s argument that the nail which injured plaintiff was not a sharp projection is absurd. Nor is there any merit to defendant’s suggestion that the nail was an integral part of the work. There is no suggestion whatsoever that the nail was in any way connected to the work plaintiff was performing at the lime of the accident.
The Labor Law imposes a non-delegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers engaged in the inherently dangerous work of construction, excavation or demolition. In order to recover a claimant need not prove that the owner or contractor exercised supervision or control over the work being performed. However, the worker must allege and prove that the owner or contractor violated a rule or regulation which sets forth a specific standard of conduct, as opposed to a general reiteration of the common law. The violation of a specific standard of conduct, once proven, does not establish negligence as a matter of law, but rather is some evidence of negligence to he considered with other relevant.
As the Court of Appeals explained that once it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiffs injury. If proven, the general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault. An owner or general contractor may, of course, raise any valid defense to the imposition of vicarious liability including contributory and comparative negligence. The court finds that the issue as to what party to, or participant in, the construction project caused plaintiffs accident is for the jury to decide.
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