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Plaintiff was employed by third-party defendant…cont

When the allegation is that the falling object, which allegedly caused the plaintiff injury was neither being hoisted nor secured and was instead, a stationary object, Labor Law §240(1) may nonetheless apply if the bike accident alleged was, given the work being performed, a foreseeable consequence of the failure to provide a safety device as enumerated by the statute.

There are two well recognized defenses to a Labor Law §240(1) claim, the “proximate cause,” no violation defense and the “recalcitrant worker” defense. A defendant can avoid liability under the statute if it can demonstrate that it did not violate the labor law and that the proximate cause of the plaintiff’s accident was plaintiff’s own negligence.

In order to establish a violation of Labor Law §241(6), the underlying statute or rule that the violation of Labor Law §241(6) is premised upon, must be one that mandates concrete specifications rather than a general safety standard. The rule alleged to have been violated, must be applicable to the facts of the action therein.

While a violation of Labor Law §241(6) subjects an owner, contractor aor agent to absolute liability, it does so only to the extent that the duty imposed by the Labor Law §241(6) cannot be delegated to a third-party. In other words, absolute liability simply means, as discussed above, that an owner contractor or agent can be liable for breach of Labor law §241(6) absent control or supervision of the work site. Based on the theory of vicarious liability, an owner, contractor or agent can be vicariously liable for the breach of Labor Law §241(6) without a showing of active negligence by the person vicariously liable. Unlike a violation of Labor Law §240(1) which establishes conclusive negligence, a violation of Labor Law §241(6) does not conclusively establish negligence and instead is “merely some evidence of negligence which the jury may consider on the question of defendant’s negligence.'”

Prima facie entitlement to summary judgment, is established when plaintiff demonstrates that Labor Law §241(6) has been violated because defendant has violated a rule or regulation promulgated by the Commissioner of Labor, which mandates compliance with concrete specifications. Further, it is axiomatic that plaintiff must also establish that any breach of the labor law was the proximate cause of the injury alleged.

Absent a duty of care to the person injured, a party cannot be held liable in negligence. In cases where there is a duty and that duty is breached, a party is held to have acted negligently. To impose common-law negligence, the tort, the duty breached, must be the proximate cause of the accident.

The common law dictates that a landowner is duty bound to maintain his or her property in a reasonably safe condition. Logically, the law dictates that reasonable care be utilized in the maintenance of the property, taking into account all circumstances such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk. Id. This duty also obligates a landowner to warn against dangerous conditions, existing on his land, known or reasonably ascertainable by him through the use of reasonable and ordinary care. No duty to warn exists, however, if the dangerous condition complained of is open and obvious and reasonably discernible through the use of one’s own senses.

A defendant is charged with having constructive notice of a defective condition when said condition is visible, apparent, and exist for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same. The law requires notice of the specific condition alleged at the specific location alleged. Id. A general awareness that a dangerous condition may exist, is insufficient to constitute notice of a particular condition alleged to have caused an accident. Instead, liability can only be predicated on defendant’s failure to remedy a dangerous condition after actual or constructive notice of the condition. Id. The absence of evidence demonstrating how long a condition existed prior to plaintiff’s accident constitutes a failure to establish the existence of constructive notice as a matter of law.

On a motion for summary judgment a defendant establishes prima facie entitlement to summary judgment when he or she establishes a lack of notice, actual or constructive. If defendant meets his burden it is then incumbent on plaintiff to tender medical evidence indicating that defendant had actual or constructive notice.

Based on the foregoing, defendants’ motion seeking summary judgment over third-party defendant on their contractual indemnification claim is hereby denied as moot and the third-party action is hereby dismissed by operation of law. It is hereby ORDERED that plaintiff’s complaint be hereby dismissed in its entirety with prejudice. It is further ORDERED that the third-party complaint be hereby dismissed. It is further ORDERED that defendants serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.

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