Defendant moves this Court pursuant to CPLR 3212 for an order granting summary
judgment and dismissing the claim.
The material facts are relatively undisputed. On July 14, 1998, claimant was
employed as a laborer erecting scaffolding at a prison operated by defendant.
Claimant was placing portions of scaffolding on the third tier, working
approximately six feet above his head, when a piece of scaffolding fell towards
him. In catching the falling piece, claimant injured his hands and shoulders.
Claimant thereafter commenced this action alleging violation of Labor Law §
241(6), for failure to comply with a safety regulation requiring that the
erection and removal of scaffolding be supervised by a designated
Defendant now moves for summary
judgment dismissing the claim. For the reasons to be stated, the Court is
unpersuaded by defendant's contention that the regulation upon which claimant
relies, 12 NYCRR 23-5.1(h), is insufficient to sustain a claim under Labor Law
§ 241(6). As such, defendant's motion is denied.
To begin, a review of Labor Law principles is helpful. Labor Law § 200 is
a legislative codification of the common law general duty to maintain a safe
workplace. A landowner or general contractor will not be liable for a breach of
this duty if he or she delegates supervision and control over the
injury-producing activity to another, such as a subcontractor (see
Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 505 ). If the
owner or general contractor maintains supervision and control over the
injury-producing activity, he or she will be liable for such injuries.
Conversely, duties imposed for violations of specific commands and standards
under Labor Law § 240 and § 241 are non-delegable, meaning that
regardless of whether a landowner or general contractor supervised the
injury-producing activity, they can be held liable.
As relevant here, Labor Law § 241(6) requires that when construction,
excavation or demolition work is performed, owners and contractors must "provide
reasonable and adequate protection and safety" for workers and they must comply
with the specific safety rules and regulations promulgated by the Commissioner
of the Department of Labor (Ross v Curtis-Palmer Hydro-Electric Co., 81
NY2d 494, 501 ). To establish liability under Labor Law § 241(6), a
claimant must demonstrate that a regulation that sets forth a specific positive
standard or command has been violated (see Rizzuto v L.A. Wenger
Contracting Co., Inc., 91 NY2d 343, 350 ; Ross v Curtis-Palmer
Hydro-Electric Company, supra). Regulations that proscribe a general
common law duty are insufficient to meet this requirement (see
id.). Here, claimant alleges a violation of 12 NYCRR 23-5.1 (h).
12 NYCRR 23-5.1(h) states "every scaffold shall be erected and removed under
the supervision of a designated person" (id.). The Court interprets this
regulation as a specific command. The language requires a specific act,
supervision, by a designated person during a particular activity - erecting or
removing scaffolding. This regulation does not just reiterate the common law
standard to maintain a safe workplace, but sets a specific safety standard. In
making this determination, the Court is unpersuaded by defendant's contention
that the regulation is a general common law command because it merely recites
that supervision is required, and supervision is required under Labor Law §
200 before an owner can be liable for common law negligence. Defendant further
argues that to allow 12 NYCRR 23-5.1 (h) to support a Labor Law § 241(6)
claim, would hold an owner liable for negligence when it was not supervising the
injury-producing activity, thus, abrogating the limitation on owner liability
set forth in Labor Law § 200.
Defendant's argument presupposes a fallacy. The argument presupposes that the
supervision required under Labor Law § 200 is the same type of supervision
contemplated by the regulation. It is not. The supervision contemplated by Labor
Law § 200 requires that before an owner will be liable for negligence, he
or she, not a designee, must actively chose to direct and control the
injury-producing activity, whatever type of activity it is. The supervision
contemplated by the regulation requires that, because of the heightened danger
involved in the specific activity of erecting and removing scaffolding, a
specific person, not necessarily the owner and in most cases probably not the
owner, must be present. This safety practice is designed to minimize the danger
involved in this activity.
In making this determination, the Court notes that by enacting Labor Law §
241, the Legislature clearly manifested an intent to place ultimate
responsibility for safety practices on construction projects with owners and
general contractors (see Rizzuto v L.A. Wenger Contracting Co.,
Inc., supra, at 348). To ensure that the owner's non-delegable duty
under Labor Law § 241(6) is not impermissibly expanded to abrogate the
protections of Labor Law § 200, only violations of regulations providing
specific commands can support a violation under Labor Law § 241(6). This
Court determines that the regulation at issue here is one such command.
As such, defendant is not entitled to summary judgment inasmuch as claimant
alleges a violation of a specific safety command (see Rizzuto v L.A.
Wenger Contracting Co., Inc., supra).
Accordingly, defendant's motion, M-70630, is denied.