Labor Law §241(6) - Expert's Conclusory Statements as to Proximate Cause are Insufficient to Impose Liability
February, 2006
In Biafora v. City of New York, 2006 NY Slip Op. 1754, 2006 N.Y. App. Div. LEXIS 2801 (2d Dep’t 2006), Plaintiff was injured while unloading concrete for use in a construction project at a facility owned by Defendant, The City of New York. Plaintiff also filed suit against the general contractor, Pile Foundation Construction Company (“Pile”).
Defendants moved for summary judgment, which was denied. The Appellate Division reversed and granted the dismissal of certain portions of Plaintiff’s claims.
Labor Law §200 effectively codified the common-law duty to maintain a safe workplace. Id. at 3, citing Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 352 (1998). To maintain a cause of action under §200, a plaintiff must demonstrate breach of the common law negligence standard; that is, a plaintiff must establish that the defendant controlled or supervised the work allegedly causing the injury or, in the alternative, that the defendant had actual or constructive notice of the allegedly dangerous condition. The Biafora Court ruled that since the City of New York did not exercise control or have notice of a dangerous condition, there can be no finding of liability against it, under §200. On the other hand, the Court stated that sufficient questions of fact remained regarding Pile’s authority to control or supervise the actions of its employees such that Plaintiff’s §200 claim must survive summary judgment as to Pile.
In dismissing Plaintiff’s Labor Law §240(1) claims against all parties, the Court further limited its scope. To maintain an action in strict liability under §240(1), an injured party must demonstrate a sufficient elevation differential between the worker and the area to which the worker hoists or secures those materials. If so established, the injured party must show that the employer provided inadequate safety devices, and that doing so constituted the proximate cause of the injury suffered. Id. at 4, citing Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 (1991). In Biafora, the Court found that the concrete unloading operation in question did not constitute the type of elevation-related hazard contemplated by the legislature in enacting Labor Law §240(1).
Similar to the aforementioned Labor Law provisions, under §241(6), owners and contractors are required to provide reasonable and adequate protection and safety for workers. However, §241 is unique in that there is a condition precedent to its applicability; that is, owners and contractors must comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. The duty to comply with the Commissioner’s regulations is non-delegable. Accordingly, to the extent that a plaintiff asserts a viable claim under §241(6), the plaintiff need not show that the defendant exercised supervision or control over the worksite in order to establish a right of recovery, but must demonstrate that his injuries were proximately caused by a violation of an applicable Industrial Code regulation. Penta v. Related Cos., L.P., 286 A.D.2d 674 (2d Dep’t 2001).
In Biafora, the Court granted summary judgment disposition to all Defendants as to Plaintiff’s Labor Law §241(6) causes of action. The Court found that Plaintiff failed to substantiate allegations that Defendants violated specific provisions of the New York Industrial Code, as required to trigger protection under Labor Law §241(6). Plaintiff’s expert engineer opined that Defendants violated 12 NYCRR 23-8.1(f) and 12 NYCRR 23-8.2(c), which both address hoisting a load. The expert further asserted in a conclusory fashion that the violations proximately caused Plaintiff’s accident. The Court stated that Defendants established that the bucket was dragged and not hoisted and that any alleged violations of the Industrial Code provisions cited by Plaintiff’s expert were not a proximate cause of the accident. Further, the Court concluded that even if the cited codes were applicable to the unloading procedure in question, Plaintiff’s expert failed to specify how compliance with the cited provisions would have prevented Plaintiff’s accident.
Learning Point:
An expert’s conclusory statements that the violation of applicable industrial codes were a proximate cause of the injuries complained of, without more, are insufficient to establish liability pursuant to Labor Law §241(6). In Biafora, the Court held that absent Plaintiff’s “expert” opinion, there was no evidence substantiating Plaintiff’s allegations of Industrial Code violations and, therefore, failed to establish proximate causation. The ruling, so inextricably related to the failure of Plaintiff’s expert to substantiate Plaintiff’s allegations of Industrial Code violations, sets a higher standard, one that may decrease the often frivolous invocation of such violations to trigger the protections provided by Labor Law §241(6). •
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