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Plaintiff Argues That Grave Injury Enables Him to File Complaint Against Employer for Workplace Injury


On April 9, 2009, a man allegedly sustained injuries when he slipped and fell backward on asphalt/debris while attempting to remove a sixteen foot long wooden form with a pick at a construction project located in West Hempstead, New York. The project involved installation of drainage systems, curbing, replacement of asphalt shoulders and other related work. The man testified that the accident occurred while he was attempting to remove a series of wooden forms, approximately sixteen feet long and six inches wide, into which concrete had been poured. When he placed the pick under one of the forms and pulled back on the pick to lever said form, he slipped and landed on the ground. According to his testimony, on the day before the accident, the general contractor had put down temporary asphalt in the area where the accident occurred and there were pieces of asphalt of different sizes strewn around on the ground.

The accused and third-party complainant was the general contractor on the project and the man’s employer, a third-party opponent was the subcontractor hired by the general contractor to provide labor and materials as and for certain concrete and other related work on the project, including demolition of existing curbs and installation of new curbs. A Purchase Order, generated by the subcontractor and executed by the general contractor reflects the parties’ arrangement. The Purchase Order provides that the subcontractor agrees to save, hold harmless and indemnify the general contractor on account of all expense, liability or payment by damage suffered through any act of the general contractor and their subcontractors. The subcontractor further agrees to pay for all attorneys’ fees, costs and related disbursements incurred by the general contractor.

The complainant man commenced an action against the general contractor alleging negligence and violation of the Labor Law in its failure to provide him with a safe workplace, to properly supervise and oversee the job site and to provide proper safeguards.

Predicated on the theory that it is entitled to a defense and indemnity from the subcontractor pursuant to the Purchase Order, the general contractor commenced a third-party action against the man’s employer, asserting causes of action for contractual indemnification, breach of contract, negligence, common law indemnification, declaratory judgment, contribution and breach of contract to procure insurance.

The general contractor has moved for summary judgment on its Verified Third-Party Complaint requiring that the subcontractor to indemnify and defend it in the first-party action contending that it was not negligent and that the area where the accident occurred was in the exclusive control of the subcontractor, who supervised/directed the man’s work and supplied him with the necessary tools, materials and safety equipment.

In response, the subcontractor has cross-moved to dismiss the claims asserted against it in the third, fourth and sixth causes of action of the Verified Third-Party Complaint for negligence, common law indemnification and contribution respectively, contending that the subject claims are barred by the Workers’ Compensation Law; the general contractor’s claim that the subcontractor has a duty to defend it in the underlying personal injury action is not properly before the Court in that the Verified Third-Party Complaint fails to assert a cause of action for such relief and the general contractor’s claim for contractual indemnification is premature.

Without an express indemnification agreement or a grave injury as enumerated in the Workers’ Compensation Law, an employer’s on-the-job liability is ordinarily limited to workers’ compensation benefits. When a grave injury results, a primary accused may commence a third-party action against an injured worker’s employer for common law indemnification and/or contribution. Workers Compensation Law does not preclude the general contractor from pursuing a contractual indemnification claim, despite the nature of the injury sustained based on a provision in a written Purchase Order contract executed prior to the accident, wherein the subcontractor agreed to indemnify the general contractor for liability arising from any act by the subcontractor or its subcontractors.

It is well settled that a contract which provides for indemnification will be enforced as long as the intent to assume such a role is sufficiently clear and unambiguous. The indemnification provision is clear and unambiguous. It provides that the subcontractor will indemnify the general contractor on account of all expenses, liability or payment by damage suffered through any act of the subcontractor and/or its subcontractors including all attorneys’ fees, costs and related disbursements.

A party seeking contractual indemnification, however, must prove itself free from negligence that no negligent act or omission on its part contributed to the underlying injury and that its liability is solely vicarious arising from a non-delegable duty under the Labor Law. To the extent that its negligence contributed to the accident, it cannot be indemnified therefore.

Upon the limited record before the Court, which has not been sufficiently developed to make a determination as to whether the general contractor was actively negligent and contributed to the man’s accident, no decision as to its right to contractual indemnification from the subcontractor can be made at this juncture. Inasmuch as the possibility exists that the general contractor could be found one hundred percent (100%) liable for the man’s injury, there is no basis to grant summary judgment on its claim for contractual indemnification. The man testified that there were pieces of asphalt debris strewn about the area where he fell at the time of the accident and it appears from the daily time sheets that the general contractor’s crews were excavating/removing concrete sidewalks in the area on the day leading up to the accident.

Given the existence of factual issues as to whose negligence, if any, caused the man’s accident, it would be premature to reach the issue of contractual indemnification.

With respect to common law indemnification, it is well settled that an employer’s liability for an employee’s on-the-job injury is ordinarily limited to Workers’ Compensation benefits. Employers, such as the subcontractor, who provide Workers’ Compensation coverage, are immune from tort liability except in a narrow class of cases in which an employee has sustained a grave injury. By statute, grave injury is only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.

Since the man’s alleged injuries to his back, as described in his deposition testimony and as amplified in his Bill of Particulars, do not fall within any of the above enumerated categories, he did not suffer a grave injury, and therefore, the general contractor is barred from asserting a common law indemnification claim against the subcontractor and the causes of action for common law indemnification/contribution asserted in the Verified Third-Party Complaint must be dismissed.

Accordingly, the general contractor’s motion for summary judgment in its favor against the subcontractor is denied given the existence of factual issues as to whether the accused and third-party complainant, as the general contractor on the project, created or caused the defective/unsafe condition which caused the man to trip and fall.

The subcontractor’s cross-motion for summary judgment dismissing the causes of action of the Verified Third-Party Complaint is granted to the extent that the fourth and sixth causes of action of the Verified Third-Party Complaint are dismissed.

When person feels pain, it hinders him to be productive. Regardless of the gravity of harm done, a person should be compensated for injuries brought about by negligence. If you are planning to pursue an injury-related lawsuit, consult the Nassau Personal Injury Lawyers together with the Nassau Injury Attorneys. Stephen Bilkis and Associates can also provide you with Nassau Wrongful Death Lawyers.

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