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.