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The Rogak Report: 31 Dec 2007 (Part III) ** Labor Law - Manholes **

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  • Lawrence Rogak
    CONSTRUCTION WORKER WHO FELL INTO OPEN MANHOLE HAS NO SCAFFOLD LAW CASE Cunha v. City of New York, NYLJ 12/31/07 (Index no. 108414/05) (Supreme Court, New York
    Message 1 of 1 , Dec 31, 2007

      Cunha v. City of New York, NYLJ 12/31/07 (Index no. 108414/05)
      (Supreme Court, New York County) (Stallman, j)

      On March 7, 2005, while working on a project involving the removal
      and replacement of pipes in the street known as Old Slip, in lower
      Manhattan, plaintiff fell part way into an open manhole, and was
      injured. While accounts of how the accident happened differ, "what is
      clear is that plaintiff was walking backward, directing a Bobcat in
      moving piping debris or materials from one area of the work site to
      another when he fell into the open manhole. The manhole cover had
      been removed to accommodate ConEd workers who were also working at
      the site. As Old Slip is a public street, the City is the owner of
      the site."

      The Court began by holding that "Labor Law §240 (1) provides, in
      relevant part: All contractors and owners and their agents . . . in
      the erection, demolition, repairing, altering . . . of a building or
      structure shall furnish or erect, or cause to be furnished or erected
      for the performance of such labor, scaffolding, hoists, stays,
      ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and
      other devices which shall be so constructed, placed and operated as
      to give proper protection to a person so employed."

      "The section imposes absolute liability on owners, contractors and
      their agents for any breach of the statutory duty that proximately
      causes a plaintiff's injury. The statute applies in circumstances
      where there are risks related to elevation differential where the
      proper 'erection', 'construction', 'placement' or 'operation' of one
      or more devices of the sort listed in section 240 (1) would allegedly
      have prevented the injury. The Legislature intended the statute to
      provide 'exceptional protection' for workers against the 'special
      hazards' that arise when the work site either is itself elevated or
      is positioned below the level where 'materials or load are hoisted or

      "The exceptional protection afforded by the statute is not intended
      to encompass any and all perils that may be connected in some
      tangential way with the effects of gravity."

      "At least two Departments of the Appellate Division have come to
      differing conclusions regarding whether an uncovered manhole
      constitutes an elevated work site or an elevation-related hazard. The
      Fourth Department, in Allen v. City of Buffalo (161 AD2d 1134 [4th
      Dept 1990]), found that 'the uncovered manhole through which decedent
      fell was an elevated worksite'. In that case, the decedent worked in
      a subterranean work area which he and his co-workers reached by
      traversing a field of approximately 50 manholes over compartments of
      a coagulation basin. The only way to gain access to their work area
      was by climbing down ladders placed at the opening of the uncovered
      manholes. On the day of the accident, a covering of snow had obscured
      the uncovered manholes. The Fourth Department found that 'under these
      circumstances,' the uncovered manhole was an elevated work site."

      "The Second Department, in Masullo v. City of New York (253 AD2d 541
      [2d Dept 1998]), found that 'while the manhole may have been
      negligently left uncovered, this is not one of the gravity-related
      hazards or perils subject to the safeguards prescribed by Labor Law
      §240 (1)'. In that case, the plaintiff worked for an entity that had
      been hired to replace certain sewer pipes located at a pumping
      station. The court concluded that 'the fall was the type of ordinary
      and usual peril a worker is commonly exposed to at a construction
      site'. The court also noted that the injured plaintiff's work
      was 'wholly unrelated to an elevation-related hazard, the manhole in
      which he fell'."

      "What constitutes an elevated work site was addressed by the Third
      Department in D'Egidio v. Frontier Insurance Co. (270 AD2d 763 [3d
      Dept 2000]), where the injured plaintiff's leg fell through a hole in
      a raised computer floor. The Court concluded that the floor was not
      an elevated work site requiring the use of the protective devices
      enumerated in Labor Law §240 (1) . . . . Rather, a work site
      is 'elevated' within the meaning of the statute where the required
      work itself must be performed at an elevation, i.e., at the upper
      elevation differential, such that one of the devices enumerated in
      the statute will safely allow the worker to perform the task.
      Moreover, the Third Department found that 'the mere proximity to an
      elevation differential, alone, is insufficient to trigger the
      protection of Labor Law §240 (1)'."

      "Here, there are differing versions of what plaintiff was doing at
      the time of his accident. He avers that he was walking backward,
      directing the Bobcat operator in moving pipes from one location to
      another at the work site, when he fell into the open manhole. His
      supervisor, Anatoly Veksler, attests that plaintiff had loaded steel
      sleeves into the front bucket of the Bobcat and was walking
      backwards, directing the Bobcat operator, 'trying to bring the
      material as close as possible to the edge of the trench' where the
      pipes would be laid. At the same time, ConEd workers were inspecting
      a manhole 'to which we would have to connect'. Plaintiff was walking
      backwards towards the open manhole and trench when he fell."

      "In considering the case law and the facts of this matter, the Court
      concludes that the street on which plaintiff was working was not an
      elevated work site, and that it did not expose plaintiff to an
      elevation-related risk. Plaintiff's task involved transferring piping
      materials along the street from one area of the work site to another.
      Walking along a street does not put a worker at risk of falling from
      an elevated work site, such that safety devices of the type
      enumerated in Labor Law §240 (1) are required. The presence of
      manholes is a common feature of city streets, and covered or
      uncovered, the presence of this particular manhole was unrelated to
      the performance of plaintiff's work. In light of all of the
      circumstances, the Court finds that plaintiff's accident was the
      result of an ordinary hazard of the workplace, and his injuries are
      not covered by Labor Law §240 (1)."

      "Accordingly, the part of plaintiff's motion which seeks summary
      judgment on the issue of defendant's liability under Labor Law §240
      (1) is denied, and the part of defendant's cross motion which seeks
      summary judgment dismissing plaintiff's Labor Law §240 (1) claim is

      "Section 241 (6), which imposes a nondelegable duty upon an owner or
      general contractor to see to it that the construction, demolition and
      excavation operations at the workplace are conducted so as to provide
      for the reasonable and adequate protection of the workers, is not
      self-executing. To establish liability under the statute, a plaintiff
      must specifically plead and prove the violation of an applicable
      Industrial Code regulation. The Code regulation must constitute a
      specific, positive command, not one that merely reiterates the common
      law standard of negligence. The regulation must also be applicable to
      the facts and be the proximate cause of the plaintiff's injury. The
      duty is imposed regardless of the absence of control, supervision, or
      direction of the work. A finding that a party has violated Labor Law
      §241 (6) is only some evidence of negligence; it does not result in
      absolute liability or a finding of negligence as a matter of law."

      "The issue of whether the City was the owner of the worksite for
      purposes of Labor Law §241 (6) must be resolved in the affirmative.
      Initially, the City has admitted that it is the owner of Old Slip, a
      public street. In addition, it is uncontested that the City
      contracted with Trocom for the work which plaintiff was performing at
      the time of his accident. This determination that the City was
      the 'owner' of plaintiff's workplace for purposes of Labor Law §241
      (6) accords with the Appellate Division, Second Department's finding
      in Romero v. J & S Simcha, Inc. (39 AD3d at 839), where the City
      admitted that it owned the property where the plaintiff was injured,
      and had issued a permit for the work."

      "The decisions in Albanese v. City of New York (5 NY3d 217 [2005])
      and Villani v. City of New York (171 AD2d 418 [1st Dept 1991]), where
      the courts found that the City was not the 'owner' under Labor Law
      §241 (6), do not require a different result. In Albanese, the
      plaintiff was standing on a scaffold suspended above the Bruckner
      Expressway. He was injured when a tractor-trailer traveling along the
      expressway struck the bottom of the scaffold and plaintiff was thrown
      into the air and fell back onto the scaffold. The Court of Appeals
      found that the City was not an "owner" because the State of New York
      had initiated the project and had hired the general contractor and
      construction manager. The City was not a signatory to the contracts;
      it did not participate in the selection of, or negotiation with, the
      contracting parties; and it performed none of the work. The extent of
      the City's involvement in the project was largely confined to its
      regulatory responsibilities arising out of its issuance of work

      "The First Department, in Villani, found that the City could not be
      held liable to the plaintiff because the plaintiff failed to
      establish that the City was the 'owner' under Labor Law §241 (6) of
      the subject worksite. Plaintiff there had been injured by a flash
      explosion in a manhole which was owned, controlled and maintained by
      Con Edison."

      "The City here has admitted that it was the owner of the street, and
      the evidence confirms the admission. Thus, the next issues are
      whether Labor Law §241 (6) and any Industrial Code sections apply in
      this matter. The replacement of pipes in Old Slip required excavation
      of the street. Thus, Labor Law §241 (6) applies. Defendant's
      contention that section 241 (6) does not apply because the risk of
      the open manhole was open and obvious and seen by plaintiff only a
      few minutes before his accident is without merit. Nevertheless, these
      circumstances merely negate any duty that defendant owed plaintiff to
      warn of potentially dangerous conditions; they do not, without more,
      obviate the duty to provide a reasonably safe workplace. Comparative
      negligence is a valid defense to a Labor Law §241 (6) claim."

      "Plaintiff's complaint and bill of particulars allege that defendant
      violated the following sections of the Industrial Code (12 NYCRR Part
      23): 23-1.7 (b) (1) (i), (ii), and (iii); 23-1.7 (e) (1) and (2); 23-
      1.15; 23-1.33; 23-2.1 (a) and (b); 23-2.2; and 23-4.2 (h) and (i).

      "Section 23-1.7 (b) (1) follows:

      (b) Falling hazards.

      (1) Hazardous openings

      (i) Every hazardous opening into which a person may step or fall
      shall be guarded by a substantial cover fastened in place or by a
      safety railing constructed and installed in compliance with this Part

      (ii) Where free access into such an opening is required by work in
      progress, a barrier or safety railing constructed and installed in
      compliance with this Part (rule) shall guard such opening and the
      means of free access to the opening shall be a substantial gate. Such
      gate shall swing in a direction away from the opening and shall be
      kept latched except for entry and exit.

      (iii) Where employees are required to work close to the edge of such
      an opening, such employees shall be protected as follows: (a) Two-
      inch planking, full size, or material of equivalent strength
      installed not more than one floor or 15 feet, whichever is less,
      beneath the opening; or (b) An approved life net installed not more
      than five feet beneath the opening; or (c) An approved safety belt
      with attached lifeline which is properly secured to a substantial
      fixed anchorage.

      "Section 23-1.7 (b) (1) (i) has been found to be sufficiently
      specific to be able to support a Labor Law §241 (6) claim. Section 23-
      1.7 (b) (1) (iii) has also been found to be specific enough."

      "Although the part of section 23-1.7 (b) (1) (i) which requires the
      manhole to have a substantial cover fastened in place obviously
      cannot apply because the manhole cover had to be removed so the ConEd
      workers could get in and out of it, the part of the provision which
      requires a safety railing may apply. The requirement of section 23-
      1.7 (b) (1) (ii) that a safety rail be provided even when free access
      to the opening is needed may also apply. However, section 23-1.7 (b)
      (1) (iii) does not apply, because plaintiff fell less than 15 feet,
      and because the provisions of that subsection would preclude access
      in and out of the manhole."

      "Sections 23-1.7 (e) (1) and (2) pertain to tripping hazards. The
      section is inapplicable because plaintiff did not trip on anything."

      "Section 23-1.15 does not apply where no railing was provided."

      "Section 23-1.33 is specific enough to support a section 241 (6)
      claim, but the provision is inapplicable here because it does not
      apply to any city in the State of New York having a population of one
      million or more persons. In addition, 12 NYCRR 23-1.33 does not apply
      to workers on a construction site."

      "Section 23-2.1 (a) and (b) are inapplicable because the storage of
      material or equipment was not a proximate cause of plaintiff's

      "Section 23-2.2, which concerns concrete work, does not apply."

      "While section 23-4.2 sets standards for trench and area type
      excavations, and is specific enough to support a Labor Law §241 (6)
      claim, subsections (h) and (i) are inapplicable because plaintiff did
      not fall into a trench, and the lack of a barrier guarding the trench
      played no part in his accident."

      "In sum, the only provisions of the Industrial Code on which
      plaintiff's Labor Law §241 (6) claim may be based are sections 23-1.7
      (b) (1) (i) and (ii). Therefore, the part of defendant's cross motion
      which seeks summary judgment dismissing plaintiff's section 241 (6)
      claim is granted except with respect to the part of the claim which
      is based on these two sections of the Industrial Code. Plaintiff's
      motion for summary judgment on his section 241 claims is denied."

      "Labor Law §200, the codification of the common law negligence
      standard, imposes a duty upon an owner or general contractor to
      provide construction site workers with a safe place to work."

      "Where a plaintiff's injuries stem not from the manner in which the
      work was being performed, but, rather, from a dangerous condition on
      the premises, a general contractor may be liable in common-law
      negligence and under Labor Law §200 if it has control over the work
      site and actual or constructive notice of the dangerous condition."

      "The City has not met its burden of establishing its entitlement to
      summary judgment on the issue of its lack of notice of the dangerous
      condition. The papers give no indication of whether or not defendant
      had control over the work site or whether any of its personnel were
      on site such that defendant might have had actual notice of the open
      manhole. The City has provided insufficient detail to establish that
      the dangerous condition was not visible and apparent and did not
      exist for a sufficient length of time prior to the accident to permit
      defendant's employees to discover and remedy it."

      "Because defendant has failed to meet its burden on its cross motion,
      summary judgment in its favor dismissing plaintiff's Labor Law §200
      and common-law negligence claims must be denied."

      Larry Rogak
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